Porter Kirkwood approved illegal human experimentation on children in foster care

In my previous blog, I wrote about Porter Kirkwood's stark lack (or deliberate refusal) to understand sex offender laws - CRIMINAL laws, which necessarily affected a father's constitutional rights in Family Court child neglect proceedings illegally brought and illegally fixed by Porter Kirkwood - in two courts.

I also wrote that my previous blog was a pre-cursor to an explanation why Porter Kirkwood's boastful claim, at the October 2015 meeting with the voters, that his masterminding of a program to "treat" "juvenile sex offenders" in foster care of Kirkwood's client, the Delaware County, is nothing to be proud about.

Once again, let's listen to what Porter Kirkwood said at his meeting with the voters about his "unique" experimental program to treat "juvenile sex offenders" which he claimed to be a "boon" for Delaware County from many points of view, including savings to taxpayers because the "program" only costs a meager $56,000 (!) per child (!) per year (!).

Kirkwood says that he invited the allegedly best authority in New York, a Dr. Hamill, to treat "juvenile sex offenders" in foster care in Delaware County, that Dr. Hamill came to Delaware County, designed an experimental program of treatment of "juvenile sex offenders" and actually subjected children kept in foster care in Delaware County to experimental sex offender treatment, which was allegedly a "boon" to Delaware County taxpayers, first, because children remained, for treatment purposes, in Delaware County and were not sent someplace else, and second, because, as compared to a $250,000 price tag per child per year to send children away to an outside facility, Delaware County paid a meager $56,000 per child per year for Dr. Hamill's program.

Kirkwood also claims that "everybody knows" that success rate in sex offender treatment of adult sex offenders is very low, and in the "age range of 12 to 14" (!) (prepubescent age) the "success rate", whatever it is, is over 60%.

Where do I begin...

Porter Kirkwood's body language during his meeting with the voters in October of 2015 revealed his nervousness.

Kirkwood's clean-shaven skull was sweaty and shining throughout his presentation, he was literally dancing and curtseying, flailing his arms and nervously gesticulating with his hands. 

That was unusual for an attorney who claimed he is an experienced trial lawyer.  Of course, there is a big difference when you appear in front of a judge with whom you fixed cases ahead of time through ex parte communications and before an unpredictable audience of voters reviewing your resume for a nearly-200 thousand dollar position for 10 years, with benefits and practically unlimited power to rule over people and please his campaign contributors.

In his eagerness to perform, Kirkwood let out information that would, probably, not come out for a long time was it not for Kirkwood's slip-of-the-tongue.

That information was - that:

• Kirkwood as a prosecutor
• prosecuted in Family Court, through juvenile delinquency proceedings, certain children, ages 7 to 16 for certain "sexual misconduct" which, if not for children's age, would have constituted a crime (Family Court Act Article 3);
• before or after obtaining a CIVIL adjudication against such children;
• children were put into foster care of Delaware County, making Porter Kirkwood, in addition of being a prosecutor of those children;
• then Porter Kirkwood invited a well known creep, a greedy peddler of unscientific theories who served everybody who paid:
• prosecutors with his "expert testimony" (requiring neutrality), thus creating for himself a double market for treatment:
• of sex offenders, and
• of sex offender victims;
• post-conviction probation departments who sent sex offenders and people who probation officers considers sex offenders, even where they were not legally sex offenders

Yet, substituted consent is practiced in New York on behalf of adults adjudicated as incompetent and minors.

I already wrote on this blog how Porter Kirkwood made another interesting revelation - that he is participating in administrative panels making decisions about adults that are not adjudicated as incompetents, bypassing competency court proceedings, where such proceedings are brought on behalf of people with monetary interest in assets of the adult and in his or her speedy death.

In addition with this clearly conflicted "public service", Porter Kirkwood takes into foster care children who his agency is financially interested to (1) label as mentally or physically disabled - it gets more money for their care this way;  (2) deprive them of future college education by committing them to IEPs (individual education plans), whether this is necessary or not, in order to, once again, receive more funds for their upkeep or adoption out of foster care - even where New York colleges do not accept IEPs as proper high school diplomas for purposes of college applications.

In addition to that, Porter Kirkwood is now prosecutes children as a prosecutor and then consents to their experimental treatment as their legal guardian - and designs programs for their treatment together with the treatment provider.

Once again, a prosecutor - acting as a legal advisor to the legal guardian of a defendant - designing program of treatment of the defendant.

All irreconcilable conflicts of interest, all warranting disbarment of Porter Kirkwood.  

Yet, there are other, equally grave problems here.

There is no such thing under the New York state law as a "juvenile sex offender"

As I discussed in my previous blog, whether a person is a "sex offender", is defined in New York by the statute of CRIMINAL CONVICTION of that person.

A juvenile delinquency adjudication is not a criminal conviction.

Thus, under the law, there is no such thing as a "juvenile sex offender".

And, since we are dealing with constitutional rights of children, there is no saying, with a wink and a nod, that "you know what I mean - they are sex offenders nevertheless".  No, they are not.

They are children adjudicated as juvenile delinquents.  Secretly.  

They are NOT sex offenders, no matter what the civil adjudication was about.

Sex offender treatment is illegal unless the court requires a sex offender evaluation and the sex offender evaluation requires such a treatment

Kirkwood mentioned that he already subjected "juvenile sex offenders" (children adjudicated as juvenile delinquents placed in foster care of Delaware County) to "sex offender treatment".

Yet, a person can only be subjected to involuntary "sex offender treatment" if:

• a court ordered a sex offender evaluation; and
• upon the results of the sex offender evaluation, the evaluator recommended treatment, guided by science-based evidence.

The court had no right to order a sex offender evaluation, because a juvenile delinquent, by law, may not be deemed a sex offender.

A sex offender evaluation is not an evaluation WHETHER the evaluated person is a sex offender - that status is defined only and exclusively by the statute of criminal conviction - but whether a person ALREADY CONVICTED of a sex offense (which did not happen with juvenile delinquents) has any risk of RE-offending.

That is what scientific literature about sex offender evaluation and treatment says.

Of course, Dr. Hamill and Porter Kirkwood (and, possibly, some other adult people handling the "program" and receiving financial benefits from it) knew all of that very well.

That's why Dr. Hamill (not a medical doctor, by the way, he was only a PhD in psychology) "agreed" to experiment on children in the obscure rural location of upstate New York.

Because it was illegal.

And only Porter Kirkwood's stupidity and his zest to win judicial elections at all costs drove him to reveal existence of such a "program".

Involuntary medical and psycholgical experimentation on human subjects, especially on children, is a violation of the 4th and the 8th Amendment, as well as of their bodily integrity, integrity of the mind and right to privacy

Mainstream and social media in the U.S. covered in the recent years the history of medical, pharmaceutical and psychological experimentation on children by various state and federal American government agencies, inside and outside of the United States.

Subjects covered were, among others:

• subjecting foster children in New York City to experimental treatment with toxic AIDS drugs;
• siphilis experimenation on orphans in Tuskagee and Guatemala; see also here

Now, there are federal regulation requiring risk/benefit assessment and determination of different level of risk factors for children who are wards of the state to get enrolled in experimental medical programs.

Kirkwood did not mention that Dr. Hamill's experimental program satisfied those regulations.

Most likely, no such assessment was ever done.

I am not the first person who compares medical experimentation on children with Nazi experiments.

Moreover, an author who covered experimentation on "wards of the state" stated the following:

Quote

--------

How is it ethical to conduct experiments with unknown risks and consequences on the most vulnerable people in America — children who have no parents and no one else who was watching for their interests?

We have been down roads similar to this before. Tests of everything from exposing people to radio and chemical weapons to mind altering substances were conducted on vulnerable people. Typically the people subjected to these studies were children as well as people who were sick or mentally disabled, many others were poor, racial minorities and prisoners; in other words, the less privileged classes were the classes used for tests.

Unquote

_______

If subjecting vulnerable populations - foster children, poor and prisoners (which juvenile delinquents are all of the above) is unethical (and illegal), how legal and ethical is to subject children kept as captives in a foster home to an admittedly experimental mind-altering treatment with no proven benefits (since the treatment is "experimental").

And especially in order to change such a fragile substance as children's and adolescents' sexuality.

WHAT IS NORMAL SEXUAL DEVELOPMENT IN CHILDREN IS NOT DEFINED BY SCIENCE

Due to existence of criminal laws of child sexual abuse, scientific research of children's and adolescent's sexuality in the United States is non-existent.

After all, even interviewing healthy children (with parents) about their sexual fantasies, masturbation patterns, sexual preferences, sexual contacts with other children and, possibly, adults, or fantasies about such contacts, development of erogenous zones in children, maturing of sexual behavior - will result in one phone call to the hotline as soon as such study begins, and the researcher will go to prison.  Nobody will blame parents for doing that.  I would be the first to call the hotline on any researcher who would try to discuss such issues with my children.  It is simply a private matter.

So, what researchers try to GUESS about children and adolescent sexuality is anecdotal evidence, evidence from criminal and juvenile delinquency proceedings (which is, of course, not representative scientific data for proper scientific research) - and research on the young of other primates, monkeys.

Yet, you wouldn't want you child be subjected to an involuntary experimental treatment based on monkey research.

Moreover, I highly doubt that "Dr." Hamill ever read any research about primates or children.  He was too busy feeding his reported (after his death) "consummate shopping" habits that had to be mentioned even in his obituary.

So, there was no legal basis to deem children in foster care adjudicated as juvenile delinquents as "sex offenders", no legal basis to subject them to sexual evaluation or treatment, no scientific data as to what constitutes the norm of sexuality in children or adolescents, and thus no guidance as to how fix the perceived "flaws" in certain children's sexual and psychological makeup, especially that the approach was that the problems, if they existed at all, were only psychological, and a thorough biochemical, genetic and medical evaluation was clearly excluded in order to let Hamill and however else was profiting by the program to get a quick buck without caring one fig about the children or the legality of the whole thing.

That's exactly why experimentation of this sordid kind was done on parentless children, kept as captives in foster care and adjudicated as juvenile delinquents - without a jury, without proper legal representation (give me a break if you want to persuade me that assigned counsel for children are of good quality).  By the way, Kirkwood, in the same video, makes another blunder - he claims "anybody can be an attorney for the children".  So, from the horse's mouth...

Yet, without such data, nobody has a right to claim they know - without research and experimental data - what is normal and what is not normal in the field of child's and adolescent sexuality.

It is obvious that the child's and adolescent's sexuality and growth (same as that of an adult) is a complex interaction of social, physiological, neurological and hormonal/chemical developments.

It is clear that just one specialist - and a psychologist, not a medical scientist - will be unable to ascertain all of the factors that are impacting formation and development of certain growth and sexual tendencies in a child.

If the psychologist cannot determine what the norm in a child or adolescent is, a psychologist has no right to try to "treat" or "fix" what he has no clue about, and the alleged "success" rate of 60% reported by Kirkwood in "treating" "juvenile sex offenders" in the age range of 12 to 14 may be nothing other than a video confession to a crime of massive sexual abuse of children.

I will cover in the next blog credentials of Dr Hamill as an expert in sex offender treatment, what was included in Dr. Hamill's sex offender treatment (I had first-hand accounts from clients as to what Dr. Hamill wanted them to go through, as well as I read multiple articles and books, including by Dr. Hamill, on the topic) - and what Kirkwood may have subjected foster children to.

Stay tuned.

Porter Kirkwood and his incompetence regarding sex offender laws

Judicial candidate Porter Kirkwood boasted, throughout his campaign, that Family Law is a "separate kind of law", and that his knowledge is superior to that of Gary Rosa who "only" presided over Town Court matters (civil and criminal) for 23 years.

I already wrote about Kirkwood's incompetence in many blogs, and would like to concentrate in this blog on one important issue - Kirkwood's absolute incompetence in regards to sex offender laws:

• what constitutes a sex offense;
• whether a certain person may be legally considered a sex offender;
• whether a certain person may be subjected to involuntary treatment as a sex offender;
• whether a certain person may be punished for refusal to be subjected to sex offender evaluation and treatment.

In 2010, Porter Kirkwood won a child neglect proceeding in front of his buddy, the case-fixing judge Carl Becker (now quickly retired 3.5 years before his mandatory retirement deadline) because a non-sex offender violated sex offender-related conditions (thus, illegal conditions) of probation by (the horror!) communicating with his own children.  Appellate court rubber-stamped the illegal child neglect finding - that was one of Porter Kirkwood's "appellate victories' he was so boastful of.

Here is an excerpt from the "winning" (and illegal) appellate decision.

My husband and I were representing Respondent in the neglect proceedings, and my husband was representing him in criminal and probation violation proceedings.  

I know for a fact that the appellate court LIED by omission in putting in the section, BUT NOT THE SUBSECTION of the law under which Respondent was convicted.

In fact, the court did refer in the above case to the case where the same appellate court reversed a prior child sexual abuse adjudication against the same father, Matter of Kayla F., 39 AD3d 983, 984 [2007]).

Yet, Kayla F. was reversed, and petition dismissed, with the court specifically stating that the father was not convicted for a sex offense, so nothing from that petition could be used as a basis for the sex offender evaluation.

Respondent was convicted under subsection 1 of the 2nd degree unlawful surveillance law, CPL 250.45(1).

Pursuant to Corrections Law 168(a)(2)(e), such a conviction is NOT a conviction for a sex offense.

Even a conviction under subsections (2), (3) and (4) of CPL 250.45 are not NECESSARILY sex offenses - and Respondent was convicted under subsection (1) which was strictly NOT a sex offense, by the statutory definition - a definition that the court had NO RIGHT to change.

Yet, the indigent Respondent (I was an assigned counsel on his neglect appeal) went to prison for not undergoing a "forensic sex offender evaluation" - while not being, as a matter of law, a sex offender.

Only persons convicted of a "sex offense" as defined in Correction Law § 168-a (2) are subject to the provisions of the Sex Offender Registration Act (Corr. L. Art. 6-C). 

Yet, Coccoma (now elevated to the position of Chief Administrative Judge of upstate New York) unlawfully took away his liberty, sending him to jail for not having money to undergo Hamill's sex offender snake-oil "treatment", while Respondent was not even a sex offender.

Yet, Becker, with the help of Kirkwood, unlawfully took away Respondent's contact with his own children.  

Porter Kirkwood knew that Respondent was not a sex offender when he brought the child neglect petition against Respondent.  

Appellate court knew it was unlawfully rubber-stamping 

NYS Judicial Conduct Commission refused to sanction judge Coccoma for unlawful incarceration of Respondent for violating conditions of probation that branded him as a sex offender, even though he never was convicted for a sex offense.

Moreover, I personally found out, through a FOIL request to the State Probation agency, that Delaware County department of probation, together with Porter Kirkwood's agency, participated in a survey where, in answers, they revealed a "policy" of Delaware County (not disclosed in any FOIL requests filed by me ever since with the county) of taking children away from "sex offenders".

That's what Kirkwood was doing - trying to separate Respondent from his children, even though Respondent was NOT a sex offender.

Once again - Respondent was convicted of unlawful surveillance in the 2nd degree.  No matter what is your personal perception of what the Respondent did, the crime for which he was charged and convicted, was ONLY unlawful surveillance in the 2nd degree.

In New York, a sex offense is a crime defined as a sex offense by statute - once again, no matter what you personally may believe Respondent's actions actually were, if we want to live in a nation of laws, Respondent was never charged, tried or convicted of a crime that constituted a sex offense.

Involuntary medical treatment is not authorized in New York under Mental Hygiene Law 9.60.

To overcome statutory and constitutional prohibition for forced medical treatment, the court has to have very good legal grounds to order such a forced medical treatment.

Courts did not have any authority to treat a non-sex offender (a person who has never been convicted for a sex offense, which is the legal definition of a sex offender in New York, whether anybody likes it or not - it's the law) as a sex offender. 

So, Michael Coccoma, Carl Becker, Porter Kirkwood and the Appellate Division 3rd Department, judges Cardona (Chief Judge, now deceased), Peters (current Chief Judge), Kavanagh, McCarty and Egan, acting in concert, misrepresented the law of Respondent's conviction in order to deprive him of his constitutional right of care and control of his children.  

Respondent's constitutional parental rights were revoked because Respondent did not undergo treatment with "Dr." Hamill, because he, an indigent (and my assignment to his appeal proves it) did not have $600 to pay for the illegal sex offender treatment of "Dr." Hamill who told Respondent to "go rake leaves to earn some money to pay for the treatment", and then turned around and complained to his probation officer that he willfully refused to undergo the treatment, which was an outright lie.

After probation was revoked, Respondent was actually coerced into the illegal sex offender treatment where Hamill found "significant sex offender issues" in a non-sex offender:

So, we now know that Porter Kirkwood does not give a fig about people's constitutional parental rights or the law when unlawful secret "policies" of his agencies are concerned.

Yet, Respondent was an adult who committed a serious crime - which does not mean that judges or DSS or Kirkwood had a right to   change Respondent's conviction for a non-sex offense to a sex-offense and treat him accordingly under the law.

What Porter Kirkwood is talking about here are "juvenile sex offenders".

Listen to what Kirkwood says - boastfully - at the meeting with voters in October of 2015:

To see what is wrong about Porter Kirkwood's boasting about luring "Dr" Hamill to Delaware County to mastermind an experimental program to treat "juvenile sex offenders" in foster care - read in my next blog.

Delaware County NY judicial candidates Porter Kirkwood and Gary Rosa on the issue of incarceration of parents who do not pay child support - an "F" to both candidates for the answers

I just posted a blog about the answers of the two candidates for the position of Delaware County Family Court judge (New York) at their meeting with voters in October of 2015.

Here are their answers to another burning question: under what circumstances they consider appropriate incarceration of parents for non-payment of child support.

Porter Kirkwood immediately started to boast about his alleged experience of prosecuting 400 cases of non-payment of child support in Delaware County per year, for many years.

He also praised putting the parent in jail as a superbly efficient money-squeezing tool, stating that as soon as the parent is put in jail, the money "magically appears".

Yet, Kirkwood did not mention whether there is a verification whether the parent has the present ability to pay, or whether the money is squeezed not from the parent, but from the savings of his friends or extended family who never had an obligation to pay, but are paying simply to help out a friend and prevent him from losing a job, a home and his livelihood through detention for civil contempt, where courts are quick to put people in jail, but unwilling to release them pending appeal, even when putting them in jail was distinctly unlawful.

Nor did Kirkwood mention his illegal practice of raiding accounts of parents and taking even money he is not supposed to take, such as federal student loan money.

In my practice in Delaware County Family Court, Porter Kirkwood's agency systematically supported putting a person in jail without any verification of present ability to pay, and where the parent actually proved that he or she is unable to pay.

Kirkwood who arrogantly sees in incarceration of poor parents only an effective means of money-squeezing, will continue as a judge turning child support laws into debtor prison laws, long ago condemned as unconstitutional.

Yet, there is growing awareness across the country of the widespread unconstitutional practice of treating parents as a objects of money squeezing and populating debtors prison.

See, for example, articles regarding such practices in the states of:

• Virginia;
• New Jersey and Pennsylvania;
• Georgia and across the country;
• Ohio and across the country.

Those are just a few articles about unconstitutional practices of social services agencies to squeeze money out of parents who have no ability to pay at the threat of incarceration and loss of their livelihoods.

I highly doubt Porter Kirkwood did not know about this growing awareness.

Porter Kirkwood, as an attorney boasting of his vast Family Court trial and appellate experience, must know that his actions in pursuing child support against parents in Delaware County under a "presumption" that they have an ability to pay while the economy is terrible, jobs are few, and there are no good jobs, as he stated to the voters in the same speech, are unconstitutional.

It is a bad and downright scary prospect for voters to elect a judge such as Kirkwood, with such a callous disregard for constitutional rights of his main constituents in the area.

So, it is a resounding F to Kirkwood for this answer.

It is an F to Rosa, too, unfortunately.

Gary Rosa blundered in failing to distinguish between civil contempt (Family Court) and criminal contempt (criminal court) by claiming that a parent who had an obligation and means to pay child support, but did not do that, should be put in jail for a "period of incarceration".

Yet, a parent put in jail for civil contempt must be released the moment the money is posted on his behalf, and cannot be put for a "term" of incarceration, that is a criminal sentence which Family Court has no authority to impose.  Moreover, criminal contempt is a  misdemeanor (at least judging by the fine), entitling the criminal defendant to a full panoply of criminal procedure protection, including a right to a jury trial - protections that are not available in Family Court.

I already described the difference between civil and criminal contempt on this blog, and specifically in the context of child support proceedings.

For a judge who practiced for 23 years and has run for the Family Court judge seat twice, such a lack of knowledge of elementary jurisdictional restrictions of Family Court is unforgivable.

Therefore, an F to both candidates on this issue.

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:

Right.  

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.

Against declining Russian economy, Russian attorneys are moving in for the kill (oops, monopoly)

I am covering issues of attorney independence around the world, and I am, of course, interested in how such issues are handled in my native country, Russia.

So far, in Russia your trusted neighbor could represent you in court, other than in criminal cases, as long as you, once again, trust him or her and gave him or her a power of attorney to do so.

That is about to change, possibly, soon.

It is no big secret that the Russian economy has been suffering greatly recently due to actions of its leadership.

As a result, the market of all paid services has dwindled.

At that background, Russian attorneys did the same as American attorneys did after the Great Depression - moved for a monopoly for legal services under the guise of protecting consumers, but in fact protected their own market from competition that could have lowered prices for services of legal elite.

Of course, the legal elite in the U.S. (as it will, undoubtedly, do in Russia), does not want those same consumers to participate in regulation that is claimed to be for consumers' benefit, instead establishing super-majorities of market players to regulate themselves, quash competition and grant or revoke state licensing as personal favors or punishments.

As reported by Russian sources covering developments in the market of legal services, on October 27, 2015 the Russian Ministry of Justice held a meeting to finalize conceptual rules of regulation of attorney's monopoly for representation in court (the linked resource is in Russian) - of course, under the guise of preventing "crooks" from defrauding innocent consumers.

As we know from experience in the U.S., the crooks are, in fact, inside, the legal elite that, under the guise of protecting consumers, is protecting their own market and applies attorney discipline only to critics of their misconduct, while allowing members of the "old boys' club" to get away with murder, as long as the "old boys" (or girls) are well-connected or related to high-ranking members of the government of any branch, on state or federal level.

Questions arise:

1) if it ain't broken - why fix it;

2) doesn't anybody learn on other people's mistakes?  should everybody step on self-created rusted rakes in order to first suffer and then - years and decades down the road, after thousands and, possibly, millions of people suffered from that mistake, try to start deregulating the "noble profession", as the process began in the U.S. and is well under way in the UK and some other European countries?

One more thing - Russian attorneys do not take into account that the gifted cage they are getting themselves into provides not only the upside (monopoly), but also a huge downside (dependency on government favors for their livelihood).

And that in return for monopoly for the profession as a whole, especially given Russia's recent history, court attorneys may be paving for themselves a road to GULAG.

Because it is a matter of time when a case turns up when an attorney will not be able to stand aside and will have to take a position, possibly a position that the government will not like.

And the attorney will quickly be disbarred, blacklisted and will not be allowed to work even as a janitor in a law firm, despite the attorney's ability to help people, and an unmet need for court representation in the attorney's specific area of law.  

By locking themselves in this guilted cage, Russian attorneys strip themselves of their independence and of their freedom of speech and freedom to actually help their clients and at the same time earn their living by making necessary and honest arguments to the court, not stake their living upon brown-nosing judges at every turn, as American attorneys are forced to do.

Isn't that a little bit too much of a loss, even in return for a monopoly?

Hair-braiders' occupational regulation - if it is not constitutional in Texas, it shouldn't be in Iowa, Arkansas and Washington. The doomsday of occupational regulation is a-coming?

On January 5, 2015, the U.S. District Court for the Western District of Texas has struck attempts of regulation by the Texas Board of Licensing and Regulation to regulate hair-braiders.

Texas, both through state and federal courts, seems to be leading the way in occupational deregulation.  In June of 2015 the State Supreme Court of Texas has struck as unconstitutional, on state constitutional grounds, eyebrow threading regulation - I wrote about it earlier in this blog, here and here.

Non-sensical hair-braiding regulation of hair-braiding has already been mocked by Jon Stewart in his Comedy Central show, possibly, that's why courts and judges who do not want to become the laughinstock of the nation, start striking down hairbraiding regulations - as the Western District of Texas federal court did.  I guess, comedians should take more court cases, it will greatly improve the quality of constitutional precedents in this country.

Hair-braiders challenged regulation of their 5000-year old trade with imposition of unnecessary and expensive training, office and equipment requirements that are not needed for the actual hair-braiding in Arkansas, Washington and in Iowa.

It is interesting to see how the predominantly white federal courts will decide this predominantly African-American hairstyling regulation.

It is also illustrative that individuals and businesses start to increasingly take the alleged "government regulation boards" to court to strike down attempts of private interest groups to quash competition, deprive people of their livelihoods and decimate consumer choices for more diverse and cheaper services.

Since the government, while pretending to fight for "public safety", provides no evidence that public safety suffers, but instead blatantly advances arguments of "rational basis", "purely economic regulation", and "it must be right if the government says so - if if the government decided to favor one group of people over the other with economic favors", and, when regulated occupations have reached over 1/3 of jobs in the U.S. economy 

(as cited in North Carolina Board of Dental Examiners v FTC, a February 2015 U.S. Supreme Court case that stripped dentists of antitrust "state immunity" for their regulating activities) 

and regulation of occupation stifles competition, entrepreneurship and economic development in the U.S., contributing to poverty, economic stagnation and public unrest - occupational deregulation is a writing on the wall, and is coming fast.

A 2nd Circuit's occupational regulation case has been chosen as one of the worst in 2014-2015 in failing to protect the U.S. Constitution

A 2nd Circuit case made in July of 2015 has made it, not surprisingly, into the list of the worst decisions of 2014-2015 in failing to protect constitutional rights of Americans by the civil rights research group the Institute of Justice.  Here is the complete report, see also the insightful coverage of the report in George Leef's blog on Forbes.com.

The interesting part is that the case was practically on the same issue as was decided earlier this year, in February of 2015 by the U.S. Supreme Court in North Carolina Board of Dental Examiners v FTC, where the U.S. Supreme Court not only ruled that the North Carolina Board of Dental Examiners was run by entrenched incumbents, market players protecting their monopoly and not sufficiently controlled by the state to justify their immunity from liability under federal antitrust laws, but also that teeth whitening is NOT an activity related to dentistry.

If it is not an activity related to dentistry, it should not be subject - jurisdictionally - to regulation of the dentistry commission.

Yet, the 2nd Circuit decided to defy this immediate U.S. Supreme Court precedent and produced a case, Sensational Smiles v Connecticut Dental Board, where said the following (among other things):

1) regulation of LED lights used in teeth whitening is related to public health because such lights may cause burns of the mouth during teeth whitening, and a non-dentist will not be prepared to deal with the problem.

The ONLY basis to conclude that LED lights ACTUALLY present a danger to public health when used in teeth whitening was the article cited by the Dental Board's expert indicating that burns from LED lights during teeth whitening "cannot be absolutely excluded" 

- a double negation which did not say that possibility of such burns was actually confirmed.

In the view of the 2nd Circuit, a speculation without evidentiary support that LED lights MAY cause burns was enough to allow a private interest group posing as a government agency (Connecticut Dental Board) to prevent their competitors from providing cheaper services to consumers, thus preventing (1) a whole group of people from earning their livelihood, and (2) preventing a whole group of other people, consumers, from choosing cheaper and more plentiful services.

Moreover, the 2nd Circuit allowed regulation by dentists of non-dentists in the area that did not constitute dental services - just 4 months after the U.S. Supreme Court ruled that teeth whitening was not related to dentistry - and thus may not be subject to regulation as dental services, through a Dental Board of any state.   

After upholding unlawful regulation by dentists over non-dentists in the area that did not constitute dental services on speculative grounds under the claim of protecting public safety, the 2nd Circuit went further and called what it just upheld on "public safety" grounds a "pure economic regulation".

The 2nd Circuit then upheld a "legitimate governmental interest" to discriminate on economic grounds - just because the government wanted to favor one group of people over the other.

The commentators in the report said that the only "silver lining" that came out of the 2nd Circuit case that they rightfully called "deplorable" is that the 2nd Circuit deepened the circuit split on the issue of whether the government has a "legitimate right" to discriminate on purely economic grounds - and "ripened" the issue for the U.S. Supreme Court review.

Yet, the U.S. Supreme Court has ALREADY reviewed the case of North Carolina Board Examiners and has ALREADY ruled that the particular kind of regulation - pursuing teeth-whiteners by dentists - is violating the Sherman Act in view of lack of control over the dentists regulating the dental profession by the state.  The U.S. Supreme Court felt so strongly about the issue of dentists imposing a private monopoly under the guise of a state-regulated profession for purposes of public health and safety that it stripped the dentists of "state immunity" for antitrust actions and subjected them to liability for private actions - with treble money damages - for antitrust activity.

The 2nd Circuit simply skipped the issue by claiming that the issue of antitrust violations were not raised by the appellants - even though violation of federal laws is within the Supremacy Clause, and the 2nd Circuit has a right to review relevant Supremacy Clause issues sua sponte.

Moreover, the claim that the appellants did not raise the issue of antitrust liability was an exercise of intellectual dishonesty by the courts - because the Appellant's brief was filed on September 12, 2014, while the decision stripping members of the Dental Board of the "state immunity" for antitrust liability in North Carolina Board of Dental Examiners v FTC was made only 6 months later, in February of 2015.

Since federal court have long developed a tendency to sanction civil rights plaintiffs for raising issues that may be subject to court-created "immunities", awarding against civil rights plaintiffs and their attorneys attorney fees for the "immune" perpetrators of misconduct, it was unreasonable to require Sensational Smiles, LLC, to 

1. exercise clairvoyant abilities, 
2. predict that a case in North Carolina Board of Dental Examiners v FTC will be decided the way it was decided, by stripping the "state immunity" from the "state" Dental Board, 
3. raise the issue of antitrust liability in the district court below, 
4. be sanctioned and slapped with attorney fees for the defendants for raising an "immune" issue, then 
5. file an Appellant's brief in the appellate court, risking to be sanctioned more, 

in order for a federal appellate court to be able to review the issue whether the speculative "public safety"/"purely economic" regulation by dentists of non-dentists on the issue that did not constitute dentistry, is antitrust activity subject to the court's review. 

Moreover, the 2nd Circuit DID review applicability of the North Carolina Board of Dental Examiners, a case decided AFTER the Appellant's brief was filed, so the Appellant's brief could not possibly discuss that case - on other issues, but not on the very issue that would have led to strike the "LED" regulation on violation of antitrust law grounds.

Intellectual dishonesty at its height.

Not surprising for the 2nd Circuit though.