Tammy is a divorced mother of three school-aged children and she ...

[khang]

Tammy is a divorced mother of three school-aged children and she is pregnant with a third. She has a history of chronic drug abuse, continues to use drugs during her pregnancy, and uses them in front of her children. She is incapable of holding a regular job and resorts to selling drugs and prostitution to make money. When she is not high on drugs, she is depressed and irritable. She is prone to angry outbursts during which she hits and belittles her children. She frequently locks them out of the house at all hours whenever she is entertaining company. Because she spends the bulk of whatever money she is able to get her hands on for drugs, there is rarely adequate food in the house. The children are constantly looking for handouts from friendly neighbors. One of the children is diabetic and Tammy pays little attention to her diet or insulin requirements. She has even used the child's needles for her own purposes.
 
  On several occasions, she has been reported to the local department of social services because the children are chronically truant from school and appear to be malnourished and frequently have visible bruises on their faces, necks and arms. Tammy has not been complying with the service plan that is in force and her social worker has told her she is going to seek removal of the children and termination of her parental rights so the children, including the baby expected in three months, can be freed for adoption to a good home. Tammy says she can't do that because she has a constitutional right to parent her children as she sees fit. Is Tammy right? Does the social worker have an adequate basis on which to pursue termination of Tammy's parental rights? Which kinds of abuse has Tammy committed based on the fact pattern?

Question 2

For two years, Annamaria's estranged husband, Jorge, has been telephoning, emailing and texting her threatening to harm her and their son. He has told her that she is still his wife and he continually accuses her of having affairs with friends, colleagues, and strangers she meets in bars, all of which is untrue. There are no court orders in place as she has been afraid to take any action. However, in one recent incident, her employer contacted the police and had Jorge arrested when he threatened a security guard who refused to let him in to see her at work. She begged her boss to not press charges because it would put her at risk. After Jorge was released, he accosted her in a supermarket parking lot and yelled and waved a gun at her and their son as they sat terrified in her locked car. Later that evening he tried to break into her apartment and she called the police. When she failed to appear at his arraignment or probable cause hearing the charges were dismissed.
 
  A week later, Annamaria called 911 when he broke down the front door of her apartment and physically assaulted her in front of their son and then headed for the boy. When the police finally arrived, they again arrested him. She had a bloody nose, a black eye, and bruises on her arms and throat. The police took pictures and Annamaria was taken to the hospital where she was treated and released. Charges were filed but Annamaria told the prosecutor that she was too terrified to testify against Jorge. Both Annamaria and Jorge have contacted attorneys for advice. Jorge has told his attorney if she thinks she is going to get away with this and embarrass me, she's crazy and She won't live to get a divorce or see me in prison. He says that he recently bought a gun and he laughs when he says he is deadly serious about getting both her and the kid. What offenses might Jorge be charged with? How should each attorney respond? How is custody likely to be determined given the facts in this case?

[mfedorka]

Answer to Question 1

a) Does Tammy have a constitutional right to parent her children as she sees fit? The student should be aware that parents do have this fundamental right but that it is not unlimited and the state has the right as parens patriae to intervene when necessary to protect the child. There is clearly cause for intervention in this case as the children, including the unborn child, are all at serious risk of injury from drugs, neglect, and physical abuse. Her treatment of the children will not be protected by any variation of a parental privilege.
b) Does the social worker have an adequate basis on which to pursue termination of Tammy's parental rights? This is a matter of opinion, but it would appear that she does, based on the severity and chronic nature of the problems and the mother's failure to cooperate and address them. The proof must be clear and convincing to support termination. The worker will also need to be able to show that reasonable efforts have been made to keep the family together.
c) What kinds of child abuse has Tammy likely committed? Pretty much all of them except perhaps sexual (although the extent of the children's exposure to or involvement in Tammy's prostitution is not clear). The student should recognize that there is evidence of physical, emotional, and substance abuse. There is also evidence of physical, emotional, medical, and educational neglect. One could argue for abandonment in some respects as well.

Answer to Question 2

a) What offenses might Jorge be charges with? Depending on the state's criminal code, he might be prosecuted for several offenses including but not necessarily limited to stalking, cyberstalking, assault, battery, aggravated child abuse, domestic abuse. The prosecutor has sufficient evidence for an evidence-based prosecution.
b) How should Annamaria's attorney respond? The number one priority should be Annamaria's safety. She should be provided with a safety plan to prepare with assistance if necessary. She is clearly at risk and although any action on her part may exacerbate the situation, inaction will continue to place her at risk. She might be encouraged to support the prosecutor as he or she conducts an evidence-based prosecution. She might also be encouraged to seek a comprehensive protective order for both her son and herself. Given that she is not legally separated from her husband she might be encouraged to pursue a divorce and obtain sole legal custody of the child, support, and property division, if appropriate. Some victims of abuse may choose to file civil actions against their abusers for battery, destruction of property, and intentional infliction of emotional distress. Note however that if the divorce action is based on cruel and abusive treatment, matters related to the abuse will probably need to be litigated in the context of the divorce action. It needs to continually be kept in mind that a victim of abuse is never at greater risk than when she finally stands up for herself and acts and so again, safety must be the number one priority. She needs to be fully prepared for his potential response when he is served with any legal action.

c) How should Jorge's attorney respond? Like it or not, everyone is entitled to representation, even batterers. However few lawyers are trained to work with either batterers or victims and it is permissible to decline to represent a client who poses a threat to others including potentially members of the family law team. Clearly an effort should be made to dissuade the client from carrying out any violent or otherwise criminal actions. The attorney's duty to report the client's threats will vary by jurisdiction. In some, the duty to report has already been triggered by the client's threat and clear potential to carry out the threat. In some jurisdictions the potential victim(s) are to be warned. In some jurisdictions, the attorney will be mandated to report the abuse he or she suspects is occurring and/or is threatened. In the absence of a state rule, the attorney is well advised to act in a manner consistent with the American Bar Association Rules of Professional Conduct and disclose only the information necessary to prevent death or substantial bodily harm.
d) How is custody likely to be determined given the facts in this case? A documented history of abuse is a factor considered in custody determinations in every state. In some there is a rebuttable presumption against awarding custody to a parent who has a documented history of abusing a child. In the extreme, the state may seek to terminate the abuser's parental rights but this would be done in a separate proceeding. A conviction for abuse is evidence of unfitness. In this case, custody is highly likely to be awarded to Annamaria. The student may mention that in a very small minority of states, a parent may be denied custody for permitting a child to witness domestic abuse.