In their opinions

“[N]o constitutional principle … allows a criminal defendant to defend one criminal charge by urging his lawyer or witness to commit another. Otherwise, an individual on trial for a murder-by-stabbing charge could try to prove that the knife was not long enough to kill someone by using it to stab someone else in the middle of the trial.”

– 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, explaining in Doe v. Boland, et al., why an expert witness is not immune from the civil remedy provisions of federal child pornography laws.

The expert, Ohio attorney Dean Boland, created child pornography to demonstrate the difficulty of establishing “knowing” possession of child pornography. “The aim was to show it would be ‘impossible for a person who did not participate in the creation of the image to know [the child depicted is] an actual minor.'”

Boland created the images, forbidden by 18 U.S.C. § 2252A(a)(5)(B), by downloading pictures of children from a stock photo web site and then electronically “morphing” the pictures into images of adults engaged in very adult activities.

The children’s parents sued Boland “under 18 U.S.C. § 2252A(f) and § 2255, which respectively provide civil remedies to ‘any person aggrieved’ and to minor victims who have suffered ‘personal injury’ from a violation of 18 U.S.C. § 2252A(a).”

The federal district court dismissed the case but the Sixth Circuit reversed. Writing for a unanimous panel, Sutton noted that the federal civil remedy statute does not contain an expert witness exception. Moreover, wrote Sutton, Boland

could have illustrated the difficulty of discerning real from virtual images by combining two innocent pictures into another innocent picture.

Or, if Boland wished to use pornography to make the point, he could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here.

These images are not prohibited by federal law, see 18 U.S.C. § 2252A(c), and are protected by the First Amendment to the extent they are not obscene … .

Boland did something else. He morphed images of minors into pornography, images that “implicate the interests of real children.” …

The law expressly covers such images, 18 U.S.C. § 2256(8)(C), and the reality that Boland himself did not “use” real children to produce the images makes no difference … .

On remand, the federal district court will consider Boland’s argument that the children have not suffered “personal injury” under § 2255.

The parties have stipulated that the children are, mercifully, unaware of the created images.

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Foster Care Review Board announces 2010 awards

Two attorneys and a Saginaw County probate judge are among those honored by the Foster Care Review Board (FCRB) at its recently concluded 2010 conference.

Saginaw County Probate Judge Faye Harrison received the Jurist of the Year Award for her work as a family court judge.

Harrison, a 30-year veteran, was nominated by Barbara Hill, chair of the FCRB volunteer board in Saginaw County, as “a wonderful and expressive advocate for children’s justice who has truly made a difference in the lives of children in Saginaw County.”

Harrison, a past president of the Michigan Probate Judges Association, was cited for her leadership on the state and national level.

Tracy Green, managing attorney of the Detroit Center for Family Advocacy, received the FCRB’s Parent Attorney of the Year Award for her representation of parents in child welfare cases.

University of Michigan Law School Prof. Vivek Sankeran, who nominated Green, praised her as a “passionate and tireless advocate for parents.” Sankeran described Green as “nurturing and attentive … [she] is well respected by jurists and her attorney colleagues in Wayne County, where she practices, for her professionalism, expert knowledge and zealous representation of her clients.”

The Lawyer-Guardian Ad Litem of the Year Award was presented to Viola King, an attorney with the Juvenile Law Group in Wayne County.

Wayne County Family Court Referee Ilene Weiss Fruitman, who nominated King, described King as “the best and most professional representative and advocate for children of all who have practiced before me in my 13 years on the bench.”

King is esteemed by her colleagues in the child welfare system, Fruitman reported, and “has the rare quality of truly listening to what [her clients] are saying, as well as being able to hear what they are not saying.”

The FCRB, which was created by the Michigan legislature in 1981, serves as a statewide system of third-party review of the foster care system.

The program is administered by the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, and is comprised of citizen volunteers who serve on one of 30 local review boards throughout the state.

Local boards review randomly chosen child abuse and neglect cases to assess the performance of courts, Department of Human Services and private child welfare agencies.

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Probate judges like Lipton

The Michigan Probate Judges Association has honored state Rep. Ellen Cogen Lipton as the group’s Legislator of the Year.

Rep. Ellen Cogen Lipton

Rep. Ellen Cogen Lipton

The MPJA recognized Lipton’s legislative efforts on behalf of children and the mentally ill.

Susan L. Dobrich, chief judge of the Cass County Probate Court and MPJA president, says:

[A] bill that she introduced earlier this year, HB 6046, would make it easier for courts to order treatment for mentally ill persons before they harm themselves or others. This is the kind of proactive approach we need.

Lipton, a freshman legislator, represents the 27th House District, which includes Berkley, Ferndale, Pleasant Ridge, Hazel Park, Huntington Woods and part of Oak Park in Oakland County.

She is vice-chair of the House Judiciary Committee and also serves on the House’s Energy & Technology, Tax Policy, and Insurance committees.

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MSC grants leave in child support case

If a court terminates a divorced man’s parental rights, must he continue to pay child support?

In In re: Beck, et al. Dep’t of Human Services v. Beck, the Michigan Court of Appeals ruled that the termination of parental rights “does not automatically extinguish the parental responsibility of paying child support.”

Support is a continuing obligation until a court specifically orders otherwise, the COA ruled. See, Michigan Lawyers WeeklySpoiled support – Parental termination does not end child support

The COA observed that MCL 712A.19b allows termination of parental rights but says nothing about ending parental responsibilities. And children have an “ongoing right to financial support … independent of a parent’s retention or exercise of his or her parental rights.”

The COA noted several public policy reasons why a support obligation survives termination of parental rights:

  • Eliminating the benefit of child support after a termination of parental rights does not assist in protecting the child from any harm emanating from the prior parental relationship; instead, it denies the child benefits based on the child’s needs and the parent’s ability to pay.
  • [A]bsent an adoption, terminating support from one parent necessarily places the full financial responsibility on the other parent, often with assistance from the state.
  • [I]f a judgment involuntarily terminating parental rights automatically discharges a parent from responsibility for child support, it could potentially lead to results detrimental to the child’s welfare. It may, for example, force a parent to forgo reporting the abusive or neglectful behavior of a co-parent in order to preserve a child’s right to receive financial support. It may also provide a vehicle for the avoidance of a support obligation by a parent; an irresponsible parent could quickly realize that he or she could escape liability for child support by abusing or neglecting their child.

Last week, the Michigan Supreme Court granted leave to appeal in Beck. The MSC has invited the State Bar of Michigan’s Children’s Law and Family Law Sections to file amici briefs.

The case will likely be argued during the Court 2010-2011 term.

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MSC denies leave in child-abuse reporting case

On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.

The MSC denied leave in Lee v. Detroit Medical Center (majority opinion) (dissenting opinion).

The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”

Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.

Michigan Lawyers Weekly had a full report of the COA’s decision.

In the MSC, Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied leave. Justices Maura Corrigan, Robert Young and Stephen Markman filed vocal dissents.

From Corrigan:

Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …
Justice Maura Corrigan
Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …

[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.

Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.

Young joined Corrigan’s dissenting statement.

Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”

Specifically at issue here is: Justice Stephen Markman(a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.

Foster Care Review Board names three for exemplary child advocacy

Marquette County Probate Judge Michael J. Anderegg, attorney Rubina Mustafa and Department of Human Services caseworker Jeannine Benedetti have been named as recipients of Foster Care Review Board (FCRB) awards for their leadership and advocacy on behalf of children.

Jim Novell, who serves as Program Manager of the FCRB, said that the awards are given for exemplary rendering of service on behalf of abused and neglected children and families served by our state child welfare system.

“The recipients stand out not only for their professionalism and performance, but also for their dedication,” Novell said.

Anderegg received the board’s Jurist Award. The FCRB noted Anderegg’s “efforts to ensure safe and timely permanency for the children who come under his jurisdiction,” adding that the judge “has made significant contributions … in caring for our state’s most vulnerable children and families.”

Mustafa received the Lawyer-Guardian Ad Litem Award. The FCRB praised Mustafa as a zealous advocate who “goes above and beyond the statutory responsibilities of a L-GAL, remaining accessible to her clients at all hours and always looking for ways to push them toward
success.”

Benedetti was presented with the Foster Care Caseworker Award. In naming Benedetti for the award, the FCRB cited her “tireless advocacy,” noting that “she is a mentor, listening ear, and friend” who makes herself available outside of working hours to assist her young clients.

The FCRB, which was created by the Michigan legislature in 1981, serves as a statewide system of third-party review of the foster care system. The program is administered by the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, and is comprised of citizen volunteers who serve on one of 30 local review boards throughout the state.