Writing in a recent edition of Regent University Law Review, Sharon Nelson, John Simek and Jason Foltin describe what is, perhaps, “the best illustration of the risks associated with posting information about oneself on a social network.” They note that an Arizona Court Cedric D. v. Stacia W. terminated a father‘s parental rights after viewing his MySpace profile. Nelson and colleagues explain:
In so holding, the court found the information posted on his profile highly relevant and determined that it suggested his lifestyle was not conducive to one in the best interest of a child. As cases like this illustrate, content on an individual‘s social networking profile may now play a role in establishing criminal or civil liability in court proceedings. More importantly, this case stands for the proposition that users can and will be held accountable for their statements on social networking sites, sometimes with life-altering consequences.
A recent posting to Cornell University Library’s Computer Science page is aptly entitled “Friend or Foe? Fake Profile Identification in Online Social Networks,” by Michael Fire, Dima Kagan, Aviad Elyashar and Yuval Elovici who explain that: “The amount of personal information unwillingly exposed by users on online social networks is staggering, as shown in recent research. Moreover, recent reports indicate that these networks are infested with tens of millions of fake users profiles, which may jeopardize the users’ security and privacy.”
In the end, privacy risks generally come down to what users choose to share about themselves online. The article ultimately concluded that: “Perhaps when users decide to join a social network they should be given a Miranda-like warning, letting them know that what they say can and will be used against them.”1
Just who you are really dealing with on a social networking site is a difficult question to answer. Facebook readily concedes in its 10-Q Quarterly Report to the Securities and Exchange Commission for the Quarter ending June 30, 2012 that the company’s brand may be “negatively affected by the actions of users that are deemed to be hostile or inappropriate to other users, or by users acting under false or inauthentic identities.” Extrapolating from the 10-Q, the researchers conclude that “the number of fake profiles on Facebook can be counted in the tens of millions. According to a recent report, Facebook estimates that 8.7% (83.09 million), of its accounts do not belong to real profiles.”
Just how many of those over 83 million fake identities on Facebook may belong to vindictive ex-spouses, jilted lovers, police trawling for brownie points in chat rooms, or social workers hoping their hapless “client” may say something incriminating in a forum intended to provide help and support is anyone’s best guess. Without question, it does happen, and when it does, it may produce results that may well be disastrous enough to derail an otherwise successful effort at regaining custody of one’s children from the state.
White House Correspondent Neil Munroe of The Daily Caller reports in March of 2011 that:
Education Department officials are threatening school principals with lawsuits if they fail to monitor and curb students’ lunchtime chat and evening Facebook time for expressing ideas and words that are deemed by Washington special-interest groups to be harassment of some students.
There has only been muted opposition to this far-reaching policy among the professionals and advocates in the education sector, most of whom are heavily reliant on funding and support from top-level education officials. The normally government-averse tech-sector is also playing along, and on Mar. 11, Facebook declared that it was “thrilled” to work with White House officials to foster government oversight of teens’ online activities.
According to the letter, composed by Russlynn Ali, who heads the Department of Education’s civil rights office, harassing conduct “may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones or the Internet… it does not have to include intent to harm, be directed at a specific target, or involve repeated incidents…” In plain English, such conduct may involve almost anything, anywhere, at any hour of the day. A quick scan with Google reveals that scores of school districts have adapted the language into their policies. Thus, the monitoring apparatus continues ever to expand.
The Daily Caller explained that Facebook officials were only too glad to help. “Facebook is developing new features that will make it harder for principals to miss episodes of online ‘harassment,’ and so will increase the likelihood of government action against the teenage users of Facebook and other social-media. “We’re adding a unique feature, developed with safety experts, that lets people also report content to someone in their support system (like a parent or teacher) who may be able to address the issue more directly,’ Facebook declared Mar. 11. ‘It is our hope that features like this will help not only remove the offensive content but also help people get to the root of the problem,’ the company statement declared.”
A Closer Look
The inquiry begins with the question of whether child protective services uses social media in any official capacity. A media release dated January 14, 2013, issued by the Nebraska Department of Human Services bears the headline “Facebook Useful in Finding Kin for Wards of the State.”
Debi Schriner, resource developer with the Nebraska Department of Health and Human Services, has found Facebook a good source to locate relatives interested in foster parenting state wards.
“Facebook is particularly good to use in identifying the relations of wards, Schriner said. Some people on Facebook are better family historians and describe how they are related. This information even leads her to relatives whose names have changed through marriage, such as aunts and uncles with different surnames than the youth or parents,” the DHHS release explains.
This only hints at the level of online monitoring by child protection agencies, schools, and other organizations. Consider that according to a press release issued by careerbuilder.com on June 27, 2013, 39 percent of prospective employers screen job prospects through social media sites. A national survey conducted by Harris Interactive for careerbuilder.com, covering the period of February 11 to March 6, found that 43% of hiring managers who used social media for screening applicants found information online that disqualified them from consideration.
“Employers who took a candidate out of the running for a job after researching social media sites reported finding a variety of concerning content,” the release explains. Among the top of the major concerns:
- Candidate posted provocative/inappropriate photos/info – 50 percent
- There was info about candidate drinking or using drugs – 48 percent
Other information included: “Candidate had poor communication skills,” and “made discriminatory comments related to race, gender, religion, etc.”
These aren’t people under investigation by child protection agencies; rather they are ordinary people out looking for a job. Any of these applicants, however, has the potential to become the subject of an abuse investigation. Imagine the field day that a CPS caseworker can have with this kind of information.
Caseworkers have been known to brag about their accomplishments online. The most recent example of note comes from the United Kingdom. An article in Echodated May 23, 2013, bears the headline “Social worker’s Facebook brags about getting children put into care.”
“A social worker has posted Facebook messages bragging about removing three children from their parents,” the article notes. Within minutes of the court ruling approving the removal of three children from their home, the social worker had posted the details on Facebook. The article continues on to explain:
“Three boys aged four, seven and nine were taken into care following a private court hearing in Chelmsford Crown Court on May 9.
“Within minutes of the court hearing, Siobhan Condon, said to be a senior Basildon social worker based at Ely House had commented on her Facebook page about the case.
“She said: ‘Just experienced His Honour Judge [sic] give parents a massive rollicking. It was an amazing and extraordinary moment in my career.’
“She added: ‘So the day is complete. Its so powerful to know that three children’s lives have just massively changed for the better and now they are safe and protected from and now have every hope for the future.'”
The article reports an Essex County Council spokeman as saying: “Essex County Council has apologised to the family for what has happened. We take this matter extremely seriously. This is unacceptable and appropriate action will be taken.”
In In re: Z.B.E.A., a minor appeal of: K.N. a non-precedential decision issued on July 9, 2013, the Superior Court of Pennsylvania upheld a lower court’s decree denying the Mother’s petition to terminate the Father’s parental rights to his child in a divorce action. The Child was born in March 2010. The Father, who was unemployed, provided childcare for his Child and the Mother’s son from another relationship. Mother and Father ended their relationship in June 2010. As per their oral agreement, the Mother retained primary physical custody of the Child and allowed Dad visitation.
In March 2011, Mother filed for and was, not surprisingly, awarded child support. Thereafter, the Mother moved, and failed to provide the Father with either her new address or new telephone number. In March of 2012, the Father arranged to file a complaint for custody, but because he was incarcerated from April 2012 to August 2012 for – you guessed it — failing to pay child support, he was unable to do so. The Mother filed a petition to terminate the Father’s parental rights on July 30, 2012. The trial court held a hearing on the petition on February 8, 2013, ultimately finding that the Mother “had not met her burden of proof that Father’s parental rights should be involuntarily terminated and denied Mother’s petition.” The appeal followed.
Pennsylvania divorce caselaw is interesting, as deliberately trying to thwart contact to obtain custody is not necessarily a one-sided affair. Rather, it requires a concerted effort on the part of the non-custodial parent to overcome, as the Court explains: “Circumstances a court may consider include explanations for apparent neglect offered by the parent facing termination, including where the party seeking termination ‘has deliberately created obstacles and by devious means erected barriers intended to impede free communication and regular association between the non-custodial parent and his or her child.'” It become a bit more thorny when you consider that: “In the face of such barriers, a parent must exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise ‘reasonable firmness’ in resisting obstacles placed in the path of maintaining the parent-child relationship.”
The trial Court ruled that:
Without conceding that she deliberately created obstacles impeding communication and association between Father and Child, Mother further argues that Father failed to use all available resources to preserve his parental relationship and to exercise reasonable firmness in resisting obstacles to maintaining the parent-child relationship. Mother specifically argues that Father could have obtained her address from her September 2011 custody complaint, called her at work, or spoken to her about Child during child support hearings.
The Court also found that the Father presented evidence of his attempts to procure visitation rights through the legal system; that at one of the child support hearings, he asked the presiding judge about his ability to see his Child and was told that custody was not an issue before the court; and that he testified at some length about his attempts to file for custody in another County. “The trial court found as a fact that Father intended to file a complaint for custody in the future,” the Appellate Court noted. While it wasn’t quite the nail in the proverbial coffin, the Appellate Court also took note that the Father had sent the Mother a Facebook “friend request.” The Mother denied the Father’s Facebook “friend request,” and blocked his ability to send her Facebook messages completely.
The Court strongly suggested that the Father’s lack of contact with his Child under the circumstances may have been due, at least in part, to the Mother having put up “roadblocks.”
In Kathy M., Appellant, V. Connor S., E.S., the Court of Appeals of Arizona, Division One, Department A. affirmed that a Mother’s efforts at defeating such potential roadblocks must be both persistent and vigorous. In its ruling dated June 25, 2013, the Court wrote:
Here, the record supports the juvenile court’s findings that Mother did not maintain regular contact with E.S. for at least eighteen months and that she has made only minimal efforts to support and communicate with E.S. From the time Mother and Father separated in March 2010, Mother made no financial contributions to E.S.’s care and support. Nor did Mother give E.S. any gifts or toys, other than a bag of candy at E.S.’s second birthday. Although Mother testified that she repeatedly asked Father for visitation, this was contrary to Father’s testimony and Mother’s subsequent admission on cross-examination that she did not make more than a minimal effort to have contact with E.S.
While the Mother’s Facebook request for visitation is mentioned only in passing (though it is nevertheless given some consideration) the crucial point is made in dicta: “When circumstances prevent the parent from exercising traditional methods of bonding with his child, he must act persistently to establish the relationship however possible and must vigorously assert his legal rights to the extent necessary. Only then is a biological link transformed into a parental relationship deserving full constitutional protection.” (Some minor cleansing has been made to this quotation to improve readability).
Because CPS proceedings are typically cast as being civil in nature, the presumption of innocence does not apply. As a result, criminal charges have the potential to arise without any of the Constitutional protections afforded a defendant in a criminal case. The question of what to do with evidence of potential criminal activity obtained without Fourth Amendment safeguards, such as presented in the following case, remains largely an open one to this day.2
In the Interest of K.S., filed by the Court of Appeals of Iowa.on April 11, 2012, involved a posting on the Father’s Facebook Wall by the Mother prompting an impromptu home visit by a service provider.
The case is illustrative of a number of points, not the least of which is that CPS caseworkers and service providers can and do monitor Facebook postings and other social media, looking to gather evidence against parents. In this case, the Facebook posting was claimed to have been a violation of a “no-contact order” that had been put into effect.
What must be understood is that service providers and other system stakeholders may stoop to incredible depths to make a case for termination. In this case, the Court noted that the Mother’s overall improvement weighed in her favor when referenced against the “one isolated incident pointed to by the State and guardian ad litem in which the mother allowed the child a sip of soda contrary to suggestions by a provider.”
This case is also illustrative of one other key point: Parents may be their own worst enemies when facing termination of their parental rights. Many a family advocate has expressed the sheer frustration of helping a parent to regain custody, only to have the entire case fall apart because the parent tested positive for marijuana or some such thing at a critical point in the proceedings.
In this case, the Mother used to smoke synthetic marijuana, but tested clean over several months of time. So far, so good. However, she testified in court that she had formed a relationship with a man she’d met on Facebook that she knew little about, saying: “It is not a relationship . . . it’s just sex.”
In B.H.1, a minor, v. Arkansas Department Of Human Services And B.H.2, a minor, Appellees, the Court of Appeals of Arkansas, Division III, upheld the termination of a Mother’s rights on September 26, 2012, taking note that she had “testified at the termination hearing that she had recently been staying overnight with an older male friend of her father’s. According to appellant, the two were just friends. She did confirm, however, that she posted a picture of the two of them on Facebook.” While this was not the sole basis for termination, it certainly did not help her case.
In In the Interest of A.D.W., A.L.W., and X.M.M., Minor Children (2012), the Court of Appeals of Iowa devoted considerable discussion to its opinion regarding the admissibility, reliability, and relevance of photographs obtained from a Mother’s Facebook page. Her parental rights were at issue, yet she had photos of marijuana plants posted on Facebook with her privacy settings set wide open for public viewing.
The Court of Appeals explains, in part: “The DHS case worker testified at the termination proceeding that she received a tip that she should check Melissa’s Facebook page. When the worker did so, she ‘clicked on a picture of [A.D.W.] and up comes pictures of what I believe is a marijuana growing operation.’ The worker testified that she included the photographs with her report not because she believed that the growing operation belonged to Melissa, but explained: ‘I just have concerns about this kind of criminal activity being posted right next to pictures of her children while she is on visits at the Boys Town office.'”
In its termination ruling, the juvenile court wrote:
Melissa’s page is not private. Upon clicking on a photo bucket with pictures of the children there are also several photos that include what appears to be a marijuana growing operation. Melissa in court admitted to this being her Facebook page. This speaks to her inability to maintain a safe home. Melissa’s judgment is clearly not what it used to be and she is obviously not using good judgment in regard to what she has offered to the world on her FaceBook page.
While the Court of Appeals held that the probable value of the photographs was questionable under the circumstances, it nevertheless found other grounds to terminate parental rights, leaving the issues of admissibility, reliability, and relevance for the most part unresolved.
Also from Iowa, In the interest of K.B., J.B., E.M., and Q.G., a case filed on October 17, 2012,.the Court managed to terminate the parental rights of three fathers in one fell swoop.
One of the fathers admitted using methamphetamine “because of the stress the DHS case had caused him,” “the stress of his wife leaving him,” and lack of contact with his kids. That much I can believe wholeheartedly. However, just weeks before the termination hearing, he tested positive for marijuana and methamphetamine. Thus, Father number one struck out.
Father number two admitted that he abused his daughter, and that his failure to see his own son over the course of over one year was largely his own fault. Strike two
But it was Father number three who most effectively struck himself out in a social forum, as the Court of Appeal explains:
“After the first day of the termination hearing, Justin posted this comment on Facebook: ‘Finally one day down. One more to go tomorrow. It’s really bad when you picture in your mind jumping over the table and choking the living shit out of a Judge.'”
Yet another Iowa case, In the interest of J.T.J. and J.A.J., minor children, A.T.J., father, appellant, provides a unique twist, inasmuch as the use of the social medium Facebook proved to work to the Father’s advantage. The Mother, Elizabeth, had waffled about the prospect of adopting out the couple’s child, changing her mind time and again. At one point, she signed adoption papers claiming that the Father’s whereabouts were “unknown.”
The Court became convinced that the Father, Anthony, visited the children at least monthly, noting that: “While different witnesses had different recollections of the precise dates on which Anthony came and went, the overall picture is one of an engaged parent who made significant efforts to spend time with his children except when precluded from doing so.”
Notably, the Court took a dim view of Elizabeth “encouraging people via Facebook not to tell Anthony anything about his children.”
In M.B. v Jefferson County Department of Human Resources, the Court of Civil Appeals of Alabama overturned the termination of a Mother’s parental rights in December 2012. As the Court explains it:
DHR made a determination in September 2011 to suspend the mother’s unsupervised visitation with the child and to remove K.B. from the mother’s home based primarily on the photograph of the child making a gesture, known colloquially as “flipping the bird,” that had appeared on the mother’s Facebook page, which, according to Hampton, DHR had characterized as poor parenting. It was undisputed that that photograph had been placed on the mother’s Facebook page by T., a friend of the mother’s, and that the mother did not have the means or knowledge to remove the photograph.
That, dear reader, was all that it took for one family’s foster care nightmare to begin. Noting that the Mother had graduated high school, was attending college, had a job, and had taken other steps to improve her life, the Court ruled: “Based on the evidence in the record before this court regarding the mother’s current conditions, we cannot agree that termination of the mother’s parental rights is warranted at this time.”
The Court of Appeals of California, in In re Ava B. by Los Angeles County Department Of Children And Family Services v Dawn B, filed on June 25, 2012,.considered a case in which the former foster parents of a child took to the task of “attaching printouts from mother’s Facebook page that included postings with references to mother’s drinking.”
The social worker spoke with the mother, who admitted that she occasionally had a drink of wine or beer, and that she believed she was allowed to do so because her counselor told her that she did not have a problem with alcohol. Naturally, these concerns were raised during a review hearing. While the record does not reflect that this issue necessarily became a particular concern, her parental rights were ultimately terminated.
Also from California comes In re Joseph V. et al., by Los Angeles County Department Of Children And Family Services v Erik V. et al (2011) in which the Court considered a case in which:the father “made other angry phone calls to the social workers, using profane language and leaving threatening voice mail messages. Father also made a threatening post on the [prospective adoptive parents] Facebook account after learning they had offered to be considered as adoptive parents for the boys.”
Our next foray into California’s child welfare and legal systems involves In re K. F. et al., by El Dorado County Department Of Human Services v. N. M (2010). Among the critical points addressed on appeal was that the mother had “denied posting a statement on Facebook attributed to her that claimed CPS had violated her rights and father’s rights; she said it must have been written by an acquaintance who ran a group called ‘Tahoe Victims of CPS.'” Regardless of whether she herself had written the posting, or whether an acquaintance had actually done so, the posting was there for all to see in the juvenile court, and the damage was done.
The Court also noted that the mother’s “claim that CPS’s attempts to do its job amounted to violating her rights, did not bode well for the future. The juvenile court could reasonably have found that if mother could not refrain from committing crimes or recognize that CPS had a proper role in these proceedings, she was unlikely to be able to put the minors’ interests ahead of her own.”
In 2011, the California Court of Appeal in In re CC, found itself embroiled in a case involving two parents seemingly determined to outdo one another when it came to using social media to their detriment. The father reportedly used Facebook to ask friends and family to provide negative information regarding the mother and positive information regarding himself. He was ordered to stop, as this bordered on harassment, in the court’s view. The Court of Appeals further explains:
The juvenile court noted father, on his facebook page, called mother a “mentally challenged, immature, disturbed drug addict with a long history of personal and family mental illness.” The juvenile court observed that mother and father still planned to “get back together” and, although that was “their business,” the juvenile court had “to protect their child because they’re not doing a very good job of it.”
The Court notes also that the mother “changed her facebook status to indicate she is in a relationship with father after they attended some counseling sessions and mother began to take responsibility for her own actions.”
Finally, in Adoption of A.S.,Kathryn S., v Vincenzco C, the Court of Appeals of California was called upon to consider the plight of a youthful girl named Molly, a new mother. The case was decided on November 29, 2012. As the Court described it:
“Molly testified that she initially thought appellant was going to help her raise the baby; she had very strong feelings for him and thought he felt the same way about her. At the beginning of October, however, he suddenly “turned” on her, saying “mean” things such as that she had gotten pregnant on purpose and had slept with all the boys in school so he could not be sure the baby was his. In a Facebook e-mail, appellant told Molly he did not know if he loved her and he thought they should not be together anymore. He also unfriended her on Facebook sometime before October 21. Molly testified that he broke her heart,” the Court explained. But Molly just didn’t know when to quit when it came to expressing her frustrations on Favebook. The Court described another exchange:
Molly was upset and posted some negative things about appellant on Facebook when she got home from school. These posts included, “Vinny [C.], you do not scare me. I do not have to put you on the birth certificate. So if you want to take my baby then you’ll have to establish paternity first and that won’t be cheap. Besides, the Court doesn’t have to grant you the right to see your baby, so ha, ha, ha, you think you’ve got me beat, boy, you have another thing coming.” By October 21, appellant had already unfriended Molly, so she did not intend these posts to communicate anything to appellant, only to express herself. She did not think the friends who saw these posts would tell appellant about them.
From the Court of Appeals of Tennessee, at Knoxville. comes the story of Sheila, which was decided by the Court on May 10, 2013. A brief excerpt should suggest the most likely outcome:
Her visitation has been pitiful. The infrequent visits have averaged one hour or less. While visiting she has often spent time texting and has at times been under the influence of drugs. There have always been excuses why she could not make visitations but none are credible. She seems to have been able to go other places. She posted pictures on Facebook with boyfriends at the mall. Respondent’s focus is on herself and not the subject child. The Respondent continues to be in denial. She is a person who life has not treated well, but she simply cannot alter her conduct for any substantial period of time.
Finally, we travel to the lone star state. In the interest of L.E.M.and S..G.M., the Court of Appeals of Texas, Second District, Fort Worth, delivered it ruling on October 18, 2012. Of particular interest to the Court were two postings the mother made on Facebook, even as her termination case was pending. The post from October 1, 2011 reads:
Tonight was wild we went to the park at 12 something and got hemmed up by the cops lol how they saw us still got us puzzled worst part he has a warr[a]nt an[d] I got two but we both were able to go home tonight Myst say[s] it would [have] been a good story to tell in [j]ail tho[ugh] Lmao[.]
The second of the Facebook messages entered into evidence against the mother read:
“Whoo hooooo lol having fun drinking omg pi like a mother right now. . . . hahaha lovin that I’m free of the old I’m free so free lovin every moment[.]”
The Court noted that the post was published less than a month before the trial, after the psychiatric evaluation, and soon after the Mother had been placed on prescription medication regarding her mental health.
The careerbuilder.com site repeatedly emphasizes that job applicants are often “their own worst enemies” when it comes to the information that they post online on social networking sites. If you are not currently the subject of an open investigation of any variety, learn how to adjust the security settings on your social media sites immediately. If you are already the subject of an investigation, do not post anything that could serve to make matters any worse than they are already. Be sure that you know who you are in communication with, and take your discussions in support forums to a more private venue.
Above all else, if you find yourself with an overwhelming desire to leap across the bench and knock some sense into a judge, rest assured that every family advocate has had that feeling at one point or another in their non-paying career. To the best of my knowledge, none have acted on the impulse, and none have disclosed that particular urge in a public forum.