NICOLE
Nicole was sexually abused as a child. Sexual abuse is the crime that never ends; even imprisonment of the offender does little good for the victim. Nicole grew up with psychological and drug and alcohol problems, and associated with violent men.

She had a baby. When the baby was 2-1/2 years old, in October, 1999, Nicole got drunk at a party and left the baby unattended in his carriage in a parking lot. Nicole’s mother fortunately found the baby and called the police, who called DCF. The baby was seized, and Nicole was given a court-appointed lawyer.

The court-appointed lawyer refused to communicate with Nicole. He would not return her phone calls, never wrote to her, and seldom attended court hearings. He sent a substitute instead and there is no evidence that he acted on the substitute’s findings. He never attended treatment plan reviews at DCF. He never contacted potential witnesses or service providers. He refused to help Nicole in getting more visitations with her son or in obtaining better treatment. The year 2000 was a very difficult one for Nicole.

In 2001, Nicole turned her life around. Events had apparently given her a wake-up call. She became more cooperative with service providers, stopped her substance abuse, improved her appearance, got a decent job which she retains to this day, and improved her choice of boyfriends. She had good visits with her son. Nicole was well on the road to rehabilitation.

The court-appointed psychologist actually wrote an evaluation report in 2000, making rehabilitation recommendations, and stating that Nicole should be given clear feedback on those recommendations. That feedback simply did not happen. DCF did not communicate with her, and her court-appointed lawyer could not be bothered, if he had indeed read the evaluation.

Nicole had been taking parenting training from Carla. In October, 2001, DCF filed a “Permanency Plan” recommending TPR (termination of parental rights). The judge found that plan outrageous, denied it, and ordered DCF to offer Nicole specialized training in how to parent the child, who by this time had been acting out considerably and was very difficult to handle. The “specialized training” referred, among other things, to the fact that Nicole and Carla simply did not get along. More on Carla later.

In spite of the Judge’s order, Nicole got no specialized training and was again sent to Carla, despite DCF’s knowledge of their mutual antagonism. DCF did put in writing that it would “explore the possibility of individualized parenting sessions”. Incredibly, DCF actually did nothing; and even more incredibly, the court-appointed lawyer did nothing, although a letter or motion might have solved the problem at that stage. Truly a horrific performance; worthy of a “60 Minutes” expose.

The best news is that Nicole actually had a great social worker, Joe. Joe really advocated for Nicole. He tried to get her more visits, but his management balked. Joe even called Nicole’s lawyer several times, asking him to help Nicole! Nothing worked.

Meanwhile, DCF remained committed, on paper, to reunifying Nicole and her child. Nicole’s individual counseling therapist wrote a letter to Joe, specifically noting Nicole’s progress and change in life style, and stating that in his opinion reunification was a certainty. However, like a Watergate shredding, this letter simply disappeared from the DCF files, as we discovered when the case came to trial and we subpoenaed the therapist. In my opinion, Joe, a great person, was ordered to lose it by his superiors, and complied when he realized where his bread was buttered; this is the reason that I personally will never work in a bureaucracy again. I would rather be on welfare.

But things progressed, and in March, 2002, DCF put in writing that Nicole and her child would be reunified by the end of May, 2002, if the good progress continued.

However, Carla did not see things that way. Carla complained that Nicole had gotten into an argument with her son during one visit (as what family hasn’t?), and therefore Nicole should be denied unsupervised visits.

It developed at trial that Carla’s agency had made a great deal of money in handling problem kids for DCF. It also developed that Carla had placed the child with a foster parent who was a friend of hers, and that that foster parent was making the incredible sum of $2,000.00 per month, tax free, for caring for the child, who had been formally classified as requiring special attention. Again, another possible scandal worthy of attention.

Despite this, on May 20, 2002, DCF wrote that Nicole had been cooperative.

However, on May 30, 2002, the planned reunification between Nicole and her child simply did not happen. And Nicole’s court-appointed said nothing and did nothing.

Throughout the remainder of 2002, Nicole and her child continued to have excellent visits, and Nicole continued to lead a good life, employed, out of trouble, well-groomed, and seeing her therapist.

In November, 2002, Joe hinted to Nicole that DCF was planning to file TPR. Quite obviously, Joe had been told this by his management and, feeling guilty, tipped Nicole off, hoping that it would be a further wake-up call.

Nicole’s lawyer continued to do nothing. Nicole remained frustrated, knowing that Carla was sabotaging her, and knowing that she could do nothing about it.

Nicole had followed all of her “specific steps”, which are court-ordered expectations for persons who want to get their children back. There was only one problem. In June, 2003, Nicole was arrested for breach of peace. What happened is that her former boyfriend had harassed and assaulted her, and she struck back in self-defense. On television, women are applauded for this. But in real life, she was threatened with jail if she didn’t plead out to the charges. Like most persons without money, she took the plea to avoid the threat of jail. Nevertheless, it was a misdemeanor conviction, and was the only excuse that DCF needed.

In August, 2003, DCF filed the TPR petition. Nicole by now was beside herself with grief. She was complaining to officials in the court house, and one excellent State Marshal heard her, took pity, and gave her my name. With her mother’s help, Nicole scraped the money together and hired me. We prepared for the TPR trial, scheduled for March, 2004.

Trial preparation is always overlooked on TV and in the movies. Lay persons sometimes think that it “just happens”. In reality, it is the most difficult part of lawyering, especially when the facts are scattered in dozens of different documents and are often in dispute. This is not the time for all those details, but suffice it to say that Nicole and I went into the case prepared.

Trial was held over four different days in March, 2004. Post-trial briefs were filed at the end of April, 2004. The Judge was a distinguished and respected jurist with a patrician bearing.

DCF’s major argument was that Nicole had “failed to rehabilitate.” Nicole agreed that she had a major problem initially, and she fully owned up to her mistakes. However, she had overcome her past, we argued, and there was no reason to deny reunification.

    A summary of the evidence follows:
1. Nicole met her specific steps, with minor and explainable exceptions.

2. Visitations with her child were generally good to excellent.

3. Nicole’s individual therapist, who had worked with her since she was a teenage victim of child abuse, testified that he would continue to work with her, and with the child’s therapist, and that she should   be able to be an effective parent.

4. A hospital therapist testified that Nicole was easy to work with, and cooperative.

5. Carla’s supervisor testified that Nicole has problems when the child is misbehaving. Yet we discovered a document written recently by Carla, which stated that the child had been continually misbehaving, even when with the foster parent. When asked, neither Carla nor her supervisor could explain the reason; but the implication that Nicole caused or fostered the problem was not credible.

6. The foster mother testified that the child was “worse” after visits with Nicole. When asked repeatedly by me in what ways he was worse, she pointedly could not answer. This, despite obvious preparation and coaching by Carla and her staff. The foster mother agreed that the child had been misbehaving recently, but admitted that she sought no extra clinical visits or additional medications. (We were to use the fact later as evidence that, whatever Nicole’s problems, the child was no better off with the foster mother).

7. A local respected child visitation agency testified that Nicole was easy to work with, and was very patient most times with the child’s difficult behavior.

8. Carla took the stand, in one of the most incredible performances of all time. Highlights of her testimony:

A. She had written in a report that the child “displayed severe symptoms of reactive attachment disorder”, or RAD. She repeated that he still has those symptoms. Yet when asked by me to define RAD, she could not do so. She admitted that, when she first wrote those words, the child had not been so diagnosed by a licensed clinical psychologist.

B. She said that Nicole was “not receptive to training”, although other testimony showed that Nicole was receptive. This was merely a personality problem between two people that ended up costing one of them her child.

C. She was smug and arrogant on the stand, as if she were above cross-examination by a lawyer.

D. She blamed DCF for choosing certain psychologists and psychiatrists to examine the child, yet DCF later testified unambiguously that Carla had made those choices herself.

E. She admitted that the child was not now in therapy, although he had been acting out recently, and had no explanation for that.

9. A psychiatrist testified that the child had RAD. Upon cross-examination, he admitted that his “examination” of the child consisted of a 45-minute face-to-face meeting, and a review of the report of a psychologist (see below), plus discussions with Carla and her staff. Never did he speak to the mother or her attorney. He admitted that the RAD diagnosis requires accurate knowledge of the history of the case, and admitted that he could not be certain that the history supplied by Carla’s staff was accurate.

10.A psychologist testified that RAD requires a showing of severe early childhood abuse or neglect, which ordinarily does not come from one isolated incident. He said that the child “appeared to have RAD criteria”, but admitted that his history information came from Carla’s staff and the foster mother. He had not spoken to Nicole, her lawyer, or her individual therapist.

11.The real zinger was the court-appointed psychologist, Dr. Jones. He submitted three separate evaluations that said that the child had RAD, and that Nicole had “borderline personality disorder” (BPD). He testified in support of those evaluation reports. Highlights of his cross-examination:

A. Dr. Jones admitted that he gathered history information from Carla and the foster mother, but nothing from Nicole’s lawyer, her individual therapist, or anyone else who had known or treated her.

B. Dr. Jones frequently opined that Nicole “minimized problems.” When asked, he was unable to give concrete examples of what that meant, or how it disqualified someone from being a parent. When told of Nicole’s current employment and other progress, he shrugged these off.

C. Dr. Jones said that he took Nicole’s June, 2003 arrest into account, but never asked for or heard the circumstances of the arrest. When told, he was also unmoved.

D. Dr. Jones had diagnosed Nicole with alcohol abuse in his 2002 report. He had omitted that diagnosis in his 2003 report. When asked if that showed progress, he again shrugged it off.

E. When confronted with books and articles by authorities in psychiatry, regarding BPD, Dr. Jones admitted that his diagnosis could not be sustained by the accepted criteria. After a lunch break, in which he reviewed his own notes and other materials, he changed his diagnosis to “mixed personality disorder”. Nowhere did he explain why he had in three reports misdiagnosed this woman, even though the books and articles discovered by me must have been known to him for decades.

F. When confronted with books and articles by authorities regarding RAD, Dr. Jones testified that his understanding of historical facts were derived from the foster mother, DCF, and Carla. He admitted that he neither sought nor received information from Nicole’s lawyer, her family, her individual therapist, or any other persons. He admitted unawareness of DCF’s very narratives that stated that Nicole and the child had many good visits together. When asked if other facts could change his diagnosis, he was noncommittal.

G. Dr. Jones also diagnosed the child as having “conduct disorder”. When asked if the child should be getting psychiatric treatment, he responded that Carla’s supervisor was a psychiatrist. This statement turned out to be untrue. When told of this, Dr. Jones was unmoved. He never seemed to appreciate the lack of communication, and miscommunication, upon which his testimony was based.

H. Dr. Jones was asked directly, by me, if Carla had told him to say that the child had RAD and that Nicole had BPD. Instead of saying “No”, Dr. Jones said directly, “I do not recall that.” Anyone familiar with Watergate may draw their own conclusions. In my opinion, Nicole received a royal zinger from many experts, with absolutely no help from her court-appointed lawyer.

And that is only “failure to rehabilitate.” DCF is also required to prove that it made “reasonable efforts to reunify parent and child.” The prior discussion shows that DCF did not do so. Nicole was given a parenting counselor who was hostile at best, and biased in favor of the foster mother at worst. She had no meaningful legal help. Her positive aspects were intentionally ignored. Reunification efforts?

As to Nicole’s court-appointed lawyer, it is true that “ineffective assistance of counsel” can get you a new trial in a criminal case, but not in a TPR case. However, I tried, arguing that at minimum, Nicole deserved another chance. The former court-appointed lawyer was subpoenaed, and a subpoena also issued for his files in this case.

He showed up in court, arrogant, argumentative, smirking, and then had the audacity to say that he had “lost the files.” He never explained why he hadn’t told me, in the two months since the subpoena was issued, that the files had indeed been lost.

This man is still actually practicing law.

When the case had concluded, and post-trial briefs submitted, I was confident that we had won. We desired, not the end of DCF involvement, but the child returned to Nicole under strict protective supervision for 9 months, with DCF required to communicate with me, and frequent in-court reviews to assess progress and to ensure that DCF was not retaliating against Nicole.

Today, I am still confident that we should have won. However, the verdict went against us. Nicole did not have the tens of thousands of dollars to pursue an appeal, first in Connecticut, and then possibly up to the U.S. Supreme Court. She lost her child, permanently.

I hope to heaven that when the child grows up, he will seek out his mother and learn the truth.
The moral is clear: Get a qualified lawyer on board early.

There are no guarantees, but I believe that this case could have been won in 3Q 2002, or early 2003 at worst. It might have been won even earlier, had I been the lawyer and able to get rid of Carla.

The interesting thing about this case is that Nicole had three different DCF social workers, all of whom are personally known to me to be excellent. She was actually victimized by a venal and biased counselor, a well-meaning but ignorant psychiatrist, an arrogant and corporate power-crazed psychologist, and an incompetent lawyer. Truly a group effort.