ROBERTA

This has to rank as my favorite case. A major injustice was corrected, not with legal brilliance or courtroom tricks, but with old-fashioned getting to the facts and refusing to accept nonsense. For lawyers: the case shows that you don’t have to be a genius to win. You don’t need to be 4.0 from Harvard Law, you don’t need to have Law Review articles published, and you don’t have to be able to understand Justice Rehnquist’s opinions. But you do need a strong desire to get the facts yourself and work with them.

Roberta and Alex were a middle-class family. He had a very good job, she was a fine homemaker. Their kids were 16, 11, and 9. The youngest was Carrie; the two older ones were boys.

The older boy had problems, and one day he improperly touched Carrie. She got very scared and reported it to a teacher. The Police were called. Then Carrie said that no, her father Alex had touched her. The Police threatened to arrest Alex. Roberta had a fit. She knew that it wasn’t true, and that Carrie had had problems which may have caused her to make a false report. Roberta made a lot of noise and did everything other than call a lawyer.

The upshot is that she herself was threatened with obstruction of justice. Now Alex got a lawyer, one of the top criminal lawyers in the State. But matters had gone too far.

If Alex protested his innocence, the prosecutor threatened a long prison term if the jury found him guilty. Also, Roberta would be prosecuted and possibly jailed herself. All the kids would be removed.

There was a simple solution, and you guessed it. Alex pleaded guilty to something he did not do, to spare his family further trauma. He received a lesser sentence, and at this writing is actually up for parole. No criminal charges were pressed against Roberta. The older son, by agreement, began to receive treatment.

What the criminal lawyer neglected to tell Roberta, because he wasn’t aware of it, was that DCF would now get involved. Which it did.

Carrie was removed from the home and placed with a foster family. Fortunately, it was a decent family and reasonably nearby. The major reason for the removal was the usual: Roberta “minimized” the problem by not disbelieving her husband. Also, Roberta was an arguer, and DCF cannot stand that. The middle boy was allowed to stay in the home, provided that the older boy moved out, which he did.

NOTE TO LAWYERS: This is another example of why I am leery of excessive specialization. It is fine to specialize, as many doctors and lawyers do, but it is wrong to ignore other aspects of the profession. Legal elements (and medical/dental elements) are interrelated, as numerous examples show. A Juvenile Court lawyer still needs to know the basics of divorce, bankruptcy, criminal and other matters.

If you do specialize, then you at least have to keep up with professional reading to be informed of developments (cases; journals; occasional seminars). Sadly, many specialists don’t have the time to do this. Lawyers, unlike doctors, have no tradition of referring people for second opinions; perhaps they should.

Roberta went to the phone book and hired a family law person. We shall call her Atty. Stentor. It seemed like a good fit. Atty. Stentor is a formidable woman who looks impressive and yells and screams and makes a lot of noise. She badgers and belittles opposing lawyers to their faces. She threatens, makes innumerable phone calls, and is generally a pest.

The problem is that she can’t accomplish anything.

After 3-1/2 years of trying, Roberta had paid Attorney Stentor $25,000.00, and was billed another $35,000.00. Thus, total charges of $60,000.00, and no results. She was no closer to getting her daughter home than when she started.

Roberta did not know how to handle it, but she knew that something was wrong. She called me, and I told her to bring all her paperwork to the office. Fortunately, Roberta was the type who saved everything, even in relatively chronological order. That, believe me, made it much easier to work with.

Roberta came to the office, and I reviewed the file. It was interesting. Among my findings:

1. Atty. Stentor had held numerous e-mail conferences with various service providers. In almost all cases, she presented some facts and asked them what they thought.

One thing you learn in bureaucratic life is never to ask other people what they think without telling them what you think. They are not going to do your work for you. They will recognize that you are not comfortable with your case and are fishing.

2. The child’s therapist, an experienced psychologist, seemed to be suggesting that the child should start the reunification process.

Yet nothing was being done. There was no formal report from the psychologist.

3. The DCF permanency plan did call for reunification. Yet the DCF social worker was stalling, and criticizing Roberta at every step of the way. Roberta was adamant that, contrary to the permanency plan, the social worker told her that she would never revoke the commitment.

Atty. Stentor never filed a motion to revoke the commitment. In effect, she let DCF stay in control, for over three years, while billing Roberta for her e-mails and conferences.

4. The social worker was openly hostile to the Roberta. She even made outrageous statements in front of the Carrie.

Atty. Stentor did nothing.

5. Roberta had an individual therapist whom she saw regularly. She attended meetings at the Carrie’s school. She also interacted well with the foster parents.

Atty. Stentor had none of this in her documentation. She was apparently not even aware of the school interaction.

6. Carrie had a court-appointed attorney and a court-appointed GAL (Guardian Ad Litem), also an attorney. They had never once seen Carrie, been to a conference, spoken to the school, or interviewed Roberta or the foster parents. Not once.

Atty. Stentor never even tried to get them involved.

It became clear that the entire basis for DCF’s attitude was its belief that Roberta had “chosen” the father over the child. This is an integral part of DCF culture, no matter what the DCF Policy Manual says. If sexual abuse by one parent is alleged, and the other parent does not immediately throw him or her out the door, then DCF will never cooperate with the other parent.

I began writing to DCF, demanding to know what Roberta was not doing that she should be doing, or what she was doing that she should be doing. Incredibly, the social worker, apparently knowing that the jig was up, refused to respond to me. Stonewalling lawyers is an old bureaucratic trick, designed to frustrate them and make them go away. In this case, I wrote to the supervisor, and when that didn’t work, I wrote to the DCF Ombudsman in Hartford. That was enough, and it was not necessary to go to the Commissioner directly. I have no idea if the worker and her supervisor were chastised, or had notes made in their personnel files; but I certainly hope so.

This is as good a time as any to note the obvious. The DCF social worker clearly believed in her heart that Roberta should not have Carrie back, and acted to the best of her ability on this good faith belief. It is similar to a police officer who is certain that an accused is guilty, and will plant evidence, or withhold exculpatory evidence, to ensure that “justice” is done, despite any “lawyer’s tricks” that might be pulled. I have no malice toward this worker; but it does illustrate the need for due process and fair dealing. Almost no one starts off being a tyrant; everyone tries to do the right thing. But “right” is determined by law, not your own prejudices.

It’s an awfully hard sell, especially to people not used to being questioned.

I called the psychologist and scheduled a visit at her office. The psychologist was very cooperative and repeated her agreement that unsupervised visits, and a definite reunification plan, should begin right away. However, she was reluctant to put that in writing, even though she had believed it for at least two years. I myself do not know exactly why she was reluctant, but I suspect that it was due to pressure from DCF.

Therefore, I drafted the letter for the psychologist, based on her own statements, and sent a copy to DCF and the other lawyers. This got her to move: she wrote her own letter two weeks later, and it was our smoking gun.

I also contacted the treatment school, where Carrie went twice a week, and obtained their treatment plan, which was very favorable. I contacted the foster parents and summarized their statements. Also, I got statements from the mother’s individual therapist.

I pressured the lawyer and the GAL to visit Carrie. To anticipate their excuses, I gave them the address and phone number and e-mail of the foster parents. I secured the foster parents’ agreement to cooperate. There was no way out, and they were forced to conduct a visit.

The foster parents were always invited to PPT’s at Carrie’s regular school. I made sure that Roberta went to the next PPT at that school, and I attended, to ensure that she would not be nervous and that her rights were protected. We made good contact with Carrie’s special education supervisor. We were able to use that supervisor as a good reference also, especially to counter DCF’s standard assertion that Roberta “minimized” Carrie’s needs.

Then, the big day. A motion to revoke the commitment was drafted. It included a motion to order DCF to provide services, as I knew that DCF would never actually help Roberta without a formal court order listing absolutely specific steps.

The motion recited everything listed above, and included the psychologist’s report. It included improper actions by the social worker. It included what lawyers call an “offer of proof”, that is, what I expected witnesses to say at trial. It includes treatment plans from Carrie’s school. It frankly and unashamedly confronted the issue of the alleged abuse. The motion text was 8 pages, with a dozen pages of attachments actually showing our evidence.

When we got to court, DCF suddenly dropped its opposition to revoking the commitment. It was apparent that the Assistant Attorney General, upon reviewing the motion, had a fit, called DCF, and advised them to cooperate.

And cooperate they did, albeit reluctantly. Three months later, the child was returned home under protective supervision. It was set to expire in a few months, meaning that DCF would be out of the case for good.

But DCF did not give up so easily.

The DCF social worker (the same one; she was never changed) started verbally harassing Roberta because she did not attend a class for “sexual abuse non-offenders” at a local clinic. DCF said that it had set this class up for Roberta, to help her “better understand the issues”, but that Roberta had failed to attend, despite numerous warnings. DCF was threatening to extend the protective supervision, or even revoke the commitment. Or even file a motion to re-instate the committment.

DCF had not had the decency to advise me of this problem, but Roberta did. I wrote to the clinic, which confirmed Roberta’s story: the class was to be held at the discretion of the clinic, and they simply did not have the enrollment yet to justify holding the class. So, no class; but they would let us know.

I sent this to the social worker in an e-mail. No response; but she continued to harass Roberta. I sent it to the supervisor, who called me and claimed she would “check into it.” I told her that was not enough; she would have to change the worker. At that, we got into a dreaded telephone argument. I wrote to the Area Director, who was useless. Then I wrote to the Ombudsman, who by now must have been wondering what was going on in this case.

Finally, DCF relented, and agreed that protective supervision could end as scheduled.

During this episode, I had again asked Carrie’s lawyer and GAL to get involved. They declined to do so. They were very polite; they just wouldn’t act.

Carrie is now doing fine at home. She is also making satisfactory progress at her new school. She continues to see her therapist, and there are family therapy sessions also. A few score hours of hard work overcame 3-1/2 years of inaction within a matter of 7 months.

I continue to work with Alex’s criminal lawyer. We will face dealing with his release one day. Of course, innocent or not, he can have no contact with Carrie until she turns 18, and then only if she so chooses. The older brother remains in treatment.

Roberta’s e-mails to me make me happy to be a lawyer. I am sorry for what she and her family went through. And, of course, it’s no one’s fault; that’s the system.

And Atty. Stentor is still busy practicing law. There is no redress. Legal malpractice is almost impossible to establish in a field like DCF/Juvenile Law, which is very new. Very few judges and juries would know how to handle it. A grievance would take years to pursue and only end up frustrating the participants.

One bit of good news. She wrote to Roberta and asked for her $35,000.00. Roberta gave the letter to me and I wrote to her. I asked for a copy of the Fee Agreement, as I had found none in the files. I also asked for an explanation of the reasonableness of a bill for $60,000.00 for accomplishing nothing in over three years.

Atty. Stentor did not reply. I have of course lost a friend, but I’ll have to live with that. It is far better to have gained the trust of a deserving person.