Will the Real Judge Joseph Johnston Please Stand Up

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Summary: The recent ruling by judge Joseph Johnston in the Pelletier case has generated a great deal of controversy. I begin with a brief recap of the more recent developments in the case, and continue on to explore appeals arising from judge Johnston’s juvenile court proceedings. A number of judge Johnston’s rulings contain troubling irregularities that are nevertheless given great deference by the appellate courts.

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The Pelletier case has generated so much controversy that Massachusetts Representatives Lombardo and Lyons have tried on more than one occasion to have a Resolution demanding the teen’s release from state custody put before the Massachusetts legislature. According to their press release, the Resolution “gathered support from Representatives on both sides of the aisle.”

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On March 24, 2014, minority Representatives sent a letter to Governor Deval Patrick, imploring him to take direct action by consulting with Governor Malloy of Connecticut to return Justina to her home state.

“The Commonwealth of Massachusetts can no longer be viewed as obstructionists in a family’s desire to return their daughter home to Connecticut,” the letter says. As of today, there has been no reply from either Governor.

Most recently, prominent civil rights attorney Alan Dershowitz extended an offer of pro bono legal aid, an offer that the Pelletier family graciously accepted.

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In the wake of the ruling in Justina Pelletier’s case, many question have arisen with regard to judge Joseph F. Johnston’s controversial ruling. The judge determined “placement of Justina in the conditional custody of her parents is not in her best interests at this time.” Judge Johnston ordered Justina into DCF custody, “subject to the parties’ right to review and redetermination” six months from adjudication.

Psychological and clinical evaluations of Justina’s parents, Lou and Linda Pelletier, are “necessary.” However, judge Johnston declined to order the evaluations to be conducted by the Boston Juvenile Court Clinic.

“These are evaluations, along with other services, that must be coordinated by the CT DCF,” the order states.

POSSIBLE FEDERAL ACTION

Now, Rep. Steve Stockman, (R-Texas), who is considering introducing a bill in the US Congress, is joining with Liberty Council, the Citizens Commission on Human Rights, and Massachusetts Republican state Rep. Marc Lombardo to call for the release of Justina Pelletier from Massachusetts state custody.

“I find certain state policies involving individual and personal medical decisions to be disconcerting,” Stockman said. “It is my firm belief that we should not provide federal dollars, through NIH grants, to states that maintain policies that conflict with personal liberty.”

Stockman said Thursday that taxpayer dollars “should not be spent on research performed upon people without their consent.”

“Stockman’s legislative staff worked all day Thursday to meet Friday’s deadline to submit a written request for the proposed legislation to the House Appropriations Committee,” WND reported.

THE INTERNET ERASER

Media accounts of the courtroom over which Johnston typically presides have themselves been contradictory, with some saying he is a Suffolk judge, others saying he presides over Essex.1

As was reported in Bostinno, attorney Beth Maloney, who handled the similar case of Elizabeth Wray, was subjected to a “gag order” that compelled her to erase everything that she’d posted online about the Wray case.

Complicating matters is that the Internet eraser has been working overtime, as a visit to Essex Juvenile Court – Lynn Session results in a message that reads: “The page you were trying to view is no longer available at that web address on the Massachusetts Court System website or has been removed.”

A similar problem is to be found with judge Johnston’s biography, as a visit to that location brings the same result: “The page you were trying to view is no longer available at that web address on the Massachusetts Court System website or has been removed.”

Searches using the web site’s search box, as well as Google searches, proved fruitless. The Internet Archive’s Wayback Machine, however, does hold a capture of judge Johnston’s biography as of June 27, 2013, however it is not too revealing.

My analysis of reported appeals reveals that judge Johnston traveled back and forth between Essex – where he appeared to be primarily assigned – and Suffolk, which is where he presided over the Pelletier case. The question of whether Johnston was hand-selected for the case, or whether it was by pure happenstance that the Pelletier family were summoned into a court in which Johnston just happened to be presiding is anyone’s best guess, at this point.

In any event, my research has landed a number of appeals from judge Johnston’s juvenile court cases, and they are in many respects illuminating.

CLOSE UP
THE RULINGS

In Adoption Of Cecily, (AC 12-P-926) 83 Mass. App. Ct. 719 (2013), the Department of Children and Families became involved in the case “when a 51-A report was filed against the mother and father for neglect of the child on the day she was admitted to the hospital.”

The ruling explains that, “The next day, the department was granted emergency custody of the child.” A second 51-A report, this time alleging that the child had been physically abused, was filed shortly thereafter. It was after the filing of the second 51-A report that the department began an actual investigation, during which the department claimed to have found “the allegations of physical abuse and neglect of the child to be supported.”

The matter is perhaps best explained by examining the criminal charges that were filed against the parents, and their individual outcomes.

At the time of trial, the criminal cases against both parents were pending. The mother was charged with assault and battery on a child with substantial injury and reckless endangerment of a child. At the close of the Commonwealth’s case, the mother moved for a required finding of not guilty on all charges and the judge granted her motion. The father was charged with two counts of assault and battery on a child with substantial injury and was later found guilty on the first count and not guilty on the second. The father was sentenced to nine to twelve years at the Massachusetts Correctional Institution at Cedar Junction.

It certainly seems clear enough from that determination. The dad hurt the child, was subsequently found guilty, and he went to jail to pay for his crime.

But that still still left mom entangled in the juvenile dependency system. And, to get your child out of there, you have to jump through the hoops that are the reunification plan. What followed thereafter was not in the least bit unusual:

The department’s initial goal, outlined in their first service plan spanning August, 2009, until February, 2010, was to return Cecily to the mother and father. In October, 2009, the department’s goal changed from reunification to adoption. Subsequently, the mother began to comply with service plan tasks, as amended to reflect changes in the department’s goals, and a visitation schedule was provided for the mother and Cecily.

With her child still held as hostage, it may be presumed that the mother endeavored as best as she could to comply with her newly amended “service plan.” Thereafter followed the trial to terminate her parental rights. Perhaps not too surprisingly, the local team of professionals all sang harmoniously out of the same hymn book. As the Court of Appeal explains it:

At the trial to terminate the mother’s and father’s parental rights, several of Cecily’s treating physicians, including a child abuse specialist, two ophthalmologists, and a radiologist, testified as witnesses for the department regarding the diagnosis, genesis, and etiology of her injuries. Their unanimous opinion was that Cecily’s injuries were inflicted, and not accidental. Three experts retained by the mother and father, none of whom examined Cecily, testified at trial. They contended that the injuries she suffered were the result of a constellation of previously undiagnosed conditions including chronic subdural hematoma, rib injuries from birth, metabolic bone diseases (brittle bones), and blood clotting disease. In his findings, the judge credited the testimony of Cecily’s treating doctors and rejected the testimony of the parents’ expert witnesses on the basis that their opinions were not supported by the medical records in the case.2

The Court of Appeal continues on to explain that:

With respect to the mother, the judge concluded that she had failed to protect the child from conditions that were clearly harmful to the child, and that she lacked the insight needed to protect the child from future harm, thereby rendering her unfit to parent the child. As a result, he issued a decree terminating both parents’ right to receive notice of or to consent to any legal proceeding affecting Cecily, including any department-proposed plan of adoption. He found this to be in Cecily’s best interests.

But wait – isn’t the dad in jail? With him safely tucked away, just what conditions may the judge have seen the potential for? Preventing future harm is a laudable goal, but what specific future harm might have come about is unclear.

Regarding the sufficiency of the evidence, the mother contended “there was insufficient evidence of any parental shortcoming such as substance abuse, mental disease, domestic violence, or physical abuse to warrant terminating her parental rights.” In addition, she argued “that the evidence was unclear whether the child’s injuries were brought about by abuse or by genetics, including metabolic bone disease.”

That women sometimes find themselves involved in abusive relationships is without question. That they at times experience great difficulty in disengaging from those relationships is also well documented, just as it is well documented that, as nonoffending parents, they are often held to blame.3

Judge Johnston did not appear to give much weight to these considerations, as he ruled that: “faced with the overwhelming evidence that the father caused the horrific injuries to the child, the mother failed to acknowledge the evidence and failed to separate from Cecily’s abuser. Such a finding has significant weight in determining unfitness.”

It is that the mother “failed to acknowledge” the allegations that worked much to her detriment. The Court of Appeal, in upholding judge Johnston’s decision, cited three cases in support of his determination on that basis. These would be Adoption of Paula, 420 Mass. 716 (1995) (judge properly considers parent’s refusal to acknowledge abuse of child in determining fitness); Adoption of Larry, 434 Mass. 456 (2001) (same); and Adoption of Lorna, 46 Mass. App. Ct. 134 (1999) (parent’s inability to “recognize abuse and confront it preventatively” was solid evidence of parental unfitness).

Adoption Of Ilona managed to wind its way to an appeal on two occasions. In the first, (AC 09-P-667) 76 Mass. App. Ct. 481 (2010), the mother was made to jump through all of the hoops that are a “service plan.” As the Court of Appeals explains it, after initial delays,

the mother was provided with a service plan intended to improve the mother’s parenting skills that included a nurturing class, which Ilona also attended, and a program to teach the mother alternative forms of discipline and anger management. The mother completed both programs, which were conducted in Spanish, and reported that she enjoyed and learned a great deal from them. However, after the classes respectively ended in May and July of 2007, the department refused to offer her more classes because the mother had difficulty understanding the concepts taught, and failed, during supervised visits with Ilona, to demonstrate that she had learned those concepts.

The mother requested that she be provided family counseling with Ilona, however the Court explains “no action was taken on that request.” Thereafter, the department “held a permanency planning conference during which the goal was changed from reunification to adoption.” The mother filed a motion to compel the department to follow departmental regulations. Judge Johnston denied the motion.

It gets better. The department of social services hired one Nita Guzman as an “expert” to perform a parenting evaluation of the mother. Guzman was skeptical of the mother’s ability to change. The mother hired her own expert, who “discovered that Guzman was not a licensed clinician.”

The department, in turn, hired another expert – presumably one with an actual license. Judge Johnston, in his written findings, claimed to have discounted the testimony of the unlicensed witness in favor of the second expert the department offered up. Unfortunately, he also discounted the testimony of the mother’s witness.

“Here, the department terminated services and changed its goal based on a parenting evaluation that was discredited,” the Court of Appeals explains. In reference to the mother’s motion alleging that the department abused its discretion by not complying with its own regulations, judge Johnston wrote: “After hearing, within motion is denied. Issues raised may be presented at the hearing of the merits of the petition as to whether the department has met its obligation to make reasonable efforts for reunification.”

It is worth noting that Ilona’s social worker reported that Ilona “wanted to have continued contact with the mother.” During two observed visits:

Ilona was happy and excited to see the mother, that notwithstanding a “lack of spontaneous conversation,” the two “seemed to enjoy themselves and laughed.” In her reports, the social worker also acknowledged that visits went well. Baizerman concluded that the “relationship” between Ilona and the mother warranted their having continued contact with each other. In these circumstances, the judge abused his discretion in not ordering specified visitation.

If you’re thinking that this may have led to a fair and just conclusion, you are bound for disappointment. The Court of Appeal ultimately upheld the termination of parental rights, and remanded the case back to the juvenile court solely on the issue of “postadoptive visitation.”

The Supreme Court was next to hear the case in Adoption Of Ilona, (SJC 10741) 459 Mass. 53 (2011).

The Supreme Court ruled that the “reasonable efforts” provided by the department were reasonable enough, and it ultimately concluded that judge Johnston did not abuse his discretion in ordering the termination of the mother’s parental rights, or in deciding that the question of future visitations were best left to the informed decision making of Ilona’s adoptive parents.

Adoption Of Zander (and three companion cases), (AC 12-P-491) 83 Mass. App. Ct. 363 (2013) arose “from the adoption plan for Sam and from the visitation determinations by a judge of the Juvenile Court.” That would be judge Joseph F. Johnston. In summary:

Different parties to the adoption appeal separate aspects of the decrees: (1) Sam’s biological father and mother appeal the judge’s decision to accept the Department of Children and Families (DCF) adoption plan rather than the biological father’s plan and the judge’s decision to deny them postadoption visits with Sam; (2) Marjorie, Amy, and Zander (the three oldest children) and the mother argue that the judge did not order sufficient visitation between the above children and the mother; and (3) the three older children and the mother also argue that the judge committed error in refusing to issue an official sibling visitation schedule. We affirm in part and remand on the issue of sibling visitation between the three oldest children.

The Court, while noting that it was “respectful of the judge’s determinations,” remanded the case “for the judge to provide a schedule for posttermination and postadoption sibling visitation.” In all others respects, it affirmed judge Johnston’s decrees.

The case of Adoption Of Jacques, (AC 11-P-190) 82 Mass. App. Ct. 601 (2012), began with – you guessed it – the filing of a 51-A form by a mandated reporter.

The Department of Children and Families first became involved with the family when Jacques was two years old, with the filing of a 51-A “when the mother took Jacques to the hospital, reporting that he was lethargic and had been vomiting.”

An examination revealed that Jacques had suffered bruising to his abdomen, buttocks, and legs. A CAT scan further revealed a pancreatic injury, for which Jacques underwent surgery. The Court of Appeals explains:

A doctor noted that Jacques’s injuries were consistent with a force type of trauma. Although Jacques suggested at the time that it was Bruce who had abused him, the department supported the allegation of neglect by an unknown perpetrator. A review of Jacques’s medical records at the time also revealed that he had been admitted to the hospital shortly after his birth for failure to thrive. At that time, Jacques’s doctor was also concerned about the possibility of abuse or neglect.

The Court explains: “The mother testified that Jacques’s abdominal injury was caused by a fall while playing outside, although she gave inconsistent accounts to the doctors about what had happened following the injury. The judge did not credit the mother’s testimony. The department filed an emergency care and protection petition, and was granted custody of Jacques. Jacques was returned to his mother’s care about one year later.”

The mother was initially non-compliant with the department, but, as the Court notes:

The mother’s compliance did, however, improve over the course of time, and by the time of trial, she had a record of consistent visits with Jacques, had completed a parenting class, and was attending an anger management class. The mother had also completed the psychological evaluation that the department had requested in order to determine if she and Jacques would be able to attend family therapy, but she refused to release the results. The judge found that the mother “purposefully withheld her evaluation results in [an] effort to conceal what I can only conclude are unfavorable results.”

Putting a parent through all of the motions of a reunification plan and changing course mid-stream is nothing unusual. There was, however, something very unusual about this particular case. As the Court of Appeals explains:

Before proceeding with the arguments on appeal, we begin by addressing Jacques’s position on appeal. Following the issuance of the judge’s decision, at a subsequent status report hearing, it came to this court’s attention that the position of Jacques’s appellate counsel was in direct opposition to that of his trial counsel. In particular, Jacques’s appellate counsel sought reunification, whereas Jacques’s trial counsel maintained her position that the mother’s rights should be terminated. In response to the conflicting advocacy, the judge held an in camera meeting with Jacques to ascertain Jacques’s feelings on reunification. Following that meeting, the judge reported to counsel that his decision and orders would remain the same. Jacques’s appellate counsel thereafter filed an appellant brief in this court.

The Court of Appeals reaffirmed that prior history “is admissible as prognostic evidence of future unfitness and was within the purview of the judge to consider.”

The Court of Appeal did find itself compelled to note: “We agree that the judge may have given less attention to the mother’s recent gains than they deserve. Nevertheless, the judge was entitled to consider the evidence of her recent improvements within the context of her earlier and continuing deficits. Weighing strengths against weaknesses is within the core competency of the trial judge, who has the benefit not only of the evidence, but of seeing and assessing the parents themselves.”

In a rather ironic twist, the Court of Appeal points to a case that it recently decided involving the very same judge Johnston. Citing Adoption of Ilona, 459 Mass. 53, 59-60 (2011), holding that for substantially the same reasons, “the judge did not err in concluding that the mother’s unfitness ‘is likely to continue into the indefinite future to a near certitude.’”

A juvenile court judge establishes a precedent on an appeal from his court that is shortly thereafter cited in his favor in a subsequent appeal. Imagine that.

 


 

1. See e.g., Susan Donaldson James, “Mom of Sick Connecticut Teen ‘Collapses’ in Court After Judge Sends Kid to Foster Care,” ABC News, (February 25, 2014) (“Pelletier had already broken an Essex County family court judge’s gag order with ABCNews.com earlier this month, saying, ‘I have got to save my daughter’s life.’”); Liz Klimas, “Judge Rules Justina Pelletier to Remain in State’s Custody,” The Blaze, (March 25, 2014) (reporting that “Suffolk County juvenile court Judge Joseph Johnston” had issued an adverse ruling).

2. Compare this outcome to judge Johnston’s determination that Justina Pelletier definitively had somatoform disorder rather than mitocondrial disease. The crucial point being that not only did the judge decide which medical testimony was more “credible” in terms of guilt or innocence in an alleged abuse case, but ipso facto decided which diagnosis a teen-aged girl actually has in the face of conflicting medical opinions. The questions begging to be asked at this juncture are: Should all differences of medical opinion be decided in this manner? When two doctors disagree, should a single judge decide who is right based on the “credibility” of their testimony? Would a tribunal of juvenile court judges be more appropriate? If so, would a simple minority opinion of two to one be sufficient to make the determination?

3. Sankaran, Vivek. “But I Didn’t Do Anything Wrong: Revisiting the Rights of Non-Offending Parents in Child Protection Proceedings.” Mich. B. J. 85, no. 3 (2006): 22-5 (“The practice of assuming jurisdiction over a child solely on the basis of the wrongdoing of one parent raises serious constitutional concerns”); Greene, Angela. “The Crab Fisherman and His Children: A Constitutional Compass for the Non-Offending Parent in Child Protection CasesAlaska L. Rev. 24 (2007): 173. (“The legal question is whether a court can adjudicate these children as in need of aid when a fit, non-offending parent is willing and able to care for them, notwithstanding the acts of the offending parent”); Sankaran, Vivek S. “Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Nonoffending Parents.” Temp. L. Rev. 82 (2009): 55 (“juvenile courts continue to disregard the constitutional rights of nonoffending parents, individuals against whom the state has made no allegations”); Grace, Elizabeth KP, and Susan M. Vella. “Vesting mothers with power they do not have: The non-offending parent in civil sexual assault cases: J.(LA) v. J.(H.) and J.(J.).” Can. J. Women & L. 7 (1994): 184 (Reflecting on first Canadian case in which a mother was found to have “failed to protect” her child against the abuser, advancing argument that this sets unrealistic standards for non-offending women perpetuating an ideology of mother-blaming); Dettlaff, Alan J., and Ilze Earner. “The intersection of migration and child welfare: Emerging issues and implications.” The Intersection of Migration and Child Welfare: Emerging Issues and Implications (2007) (describing ((p 16)) social intervention method that “allows the non-offending parent to achieve safety in a faster way because it helps her overcome obstacles making it difficult to leave”); Earner, Ilze. “Double risk: Immigrant mothers, domestic violence and public child welfare services in New York City.” Evaluation and program planning 33.3 (2010): 288-293 (“leaving an abusive relationship is complicated by special needs and challenges”); Breckenridge, Jan, and Eileen Baldry. “Workers dealing with mother blame in child sexual assault cases.” Journal of Child Sexual Abuse 6.1 (1997): 65-80 (“It was concluded that mother blame pervades much of the thinking and understanding of policy makers and workers and that therapeutic practice can be strongly biased by this belief to the detriment of both child and mother”); Jaffe, Peter G., and Claire V. Crooks. “Understanding women’s experiences parenting in the context of domestic violence.” Violence Against Women Dnline (2005) (“The identification of domestic violence and understanding the impact on a woman is difficult in and of itself. When her parenting role and the well-being of her children are being considered, these issues are even more complex”); Liebmann, Theo. “What’s Missing from Foster Care Reform-The Need for Comprehensive, Realistic, and Compassionate Removal Standards.” Hamline J. Pub. L. & Pol’y 28 (2006): 141. (“In order truly to protect children from the perils of the foster care system, we must examine the out-dated and short-sighted standards nearly every state currently uses to justify initially removing children from their parents and placing them in foster care in the first place”).

To be sure, men may also be victims of intimate partner violence by women. See e.g., Kimmel, Michael S. “‘Gender Symmetry’ in Domestic Violence A Substantive and Methodological Research Review.” Violence against women 8.11 (2002): 1332-1363 (noting “more than 100 empirical studies or reports that suggest that rates of domestic violence are equivalent”); Coker, Ann L., et al. “Physical and mental health effects of intimate partner violence for men and women.” American journal of preventive medicine 23.4 (2002): 260-268 (“Both physical and psychological [intimate partner violence] are associated with significant physical and mental health consequences for both male and female victims); Archer, John. “Sex differences in aggression between heterosexual partners: a meta-analytic review.” Psychological bulletin 126.5 (2000): 651 (Providing a comprehensive analysis, clarifying definitions, and attempting to establish a reliable framework for further analysis).