It seems that the game of political hot potato that’s been played with a young girl’s life hanging in the balance may finally be coming to an end. The Boston Globe reported yesterday that the state “has filed a motion in court that would allow Justina Pelletier, the Connecticut teenager in a long-running custody dispute, to go home, according to a lawyer for the girl’s parents.”
The Globe cited Alec Loftus, a spokesman for the Executive Office of Health and Human Services, as having issued a statement, saying, “We are pleased that the family has engaged around the reunification plan and we have filed papers in court to support our shared goal of bringing Justina home.”
Boston’s WCBV News Center 5 started off its program last night with a teaser for the overage it provided on its news broadcast.
The broadcast features a video posted by the Pelletier family on Youtube on Sunday night, one in which the world for the first time hears the young girl speak for herself. “Pelletier begged Gov. Deval Patrick and the judge deciding her fate to let her go home to her family,” the broadcast explains.
“All I really want to be with is my family and friends,” Pelletier said. “Right now — you can do it. You are the one that’s judging this. Please let me go home Judge Johnson and Gov. Patrick please right now, please let me go home right now. I need to be home with my family. I know you can do it. Please right now, I need to be home right now.”
The coverage has become international in scope, and now includes reporting by many credible mainstream papers such as The Wall Street Journal.
This is the most promising result yet obtained. The only apparent obstacle in the way at the moment would be Judge Johnston, who may decide to create an additional delay, or, heaven help us, to deny the motion. He hasn’t exactly offered to roll out the red carpet by expediting the hearing, which is set to be heard on the 20th.
The Case that Shouldn’t Have Been
This much is certain. Justina Pelletier should never have entered the system to begin with. The Supreme Judicial Court of Massachusetts ruled that: “The courts are not to determine which side of a medical dispute is sound where each side is supported by reason and logic.” Sevigny’s Case, 337 Mass. 747 (1958). That legal precept is as sound today as the day that it was written. And, whether Judge Johnston likes it or not, that law is binding on the decisions that he makes.1
More to the point, the Massachusetts high courts have ruled time and again that:
The law has firmly established that parents enjoy a fundamental liberty interest in the care, custody, and management of their children, an interest that does not simply end when they become something less than ideal caretakers. To find a child in need of care and protection, there must be an affirmative showing of parental unfitness. Parental unfitness, in this context, means more than ineptitude, handicap, character flaw, conviction of a crime, unusual life style, or inability to do as good a job as the child’s parent. Rather, the idea of parental unfitness means grievous shortcomings or handicaps that put the child’s welfare much at hazard.2
High courts in Massachusetts have held also that the issue for determining parental unfitness is not “whether the parent is a good one, let alone an ideal one; rather, the inquiry is whether the parent is so bad as to place the child at serious risk of peril from abuse, neglect, or other activity harmful to the child.” Care & Protection of Bruce, 44 Mass.App.Ct. 758, 761 (1998).
These decisions apply not just to terminations, but to transfers of custody as well. Is there anyone in their right mind that honesty believes that any among the Pelletier family fits the above descriptions?
To be sure, there does exist a small minority of vocal critics who grasp at every straw to discredit the family – sinking so low as to try to discredit Justina’s reports of maltreatment in state care. One of the techniques that these individuals use is to treat the case as if it exists in isolation, which it clearly does not.
Mass Legal Services – which describes its organization as providing an “Online Resource for Massachusetts Poverty Law Advocates,” describes the Connor B. v. Patrick class action lawsuit as alleging that the Massachusetts Department of Children and Families “violates the constitutional rights of children by routinely placing them in dangerous and unstable situations once removed from their parents’ care and fails to take necessary actions to meet the legal and moral obligation of the state-run child welfare system to ensure the safety and well-being of children in its custody.”
According to the highly-detailed civil complaint, crafted by Children’s Rights, Inc., the Massachusetts foster care system “is causing physical and psychological harm to the abused and neglected children it is mandated to protect. The myriad systemic defects afflicting the Massachusetts foster care system have long been known to Defendants, who are responsible by law for the approximately 8,500 vulnerable children and youth currently in state foster care. Defendants are failing to take the necessary action to discharge their obligations to ensure the safety and well-being of the children taken into their custody.”
There are those among the vocal minority of critics that point to the violation of Judge Johnston’s gag order as evidence of wrongdoing. Nothing could be further from the truth. The Supreme Judicial Court of Massachusetts arrived at the occasion of reviewing the constitutionality of a gag order imposed on a father by a juvenile court judge, arriving at the conclusion that the
order was and is an unlawful prior restraint on the right of the children’s father to comment on the judicial proceedings and on the conduct of the department. The department has not identified a compelling State interest that needs protection. A general rule that bars any parent from directly or indirectly revealing the names of children subject to a care and protection proceeding will not do. There must be evidence and findings as to what effect the disclosure of the names of the particular children will or might have on them.2
According to trial transcripts, Johnston gave his order verbally, saying, “I am issuing a gag order. No one is to talk about this case at all to any media, whether it is local here or local to the family in Connecticut.” The inescapable conclusion is that Judge Johnston, when imposing his order, either did not know the law, or that he freely chose to disregard it.
To the last one, all among the upper echelon have failed to honestly investigate and to intervene. I’d almost move to Massachusetts just to cast a vote against Martha Coakley, who I hasten to add recently donated money to four “charities,” including the Justice Resource Institute – which has been under fire for the high rate of sexual abuse of inmates in one of its juvenile correctional facilities in Pennsylvania; Youth Villages – Germaine Lawrence Campus; and the Home for Little Wanderers, which is currently under fire for an incident involving the alleged rape of a child in its care. All of this came about as Coakley came under scrutiny for alleged fiscal improprieties concerning her Senate campaign.
I’ll admit that my distaste for Coakley goes back to the Amirault case. But, where does she stand on that issue today? According an article on the Blue MASS Group, she remains a true believer, not that donating money to Massachusetts’ private foster care providers should leave any room for doubt. I think it can fairly be said that she appears to be pumping money right back into part of her own backstage political machinery rather than donating money to any truly charitable organizations.
That’s how that web of empire works. If your hand is caught in the cookie jar, you fork some of the cookies over to so-called non-profits that help “abused and neglected children” who weren’t actually abused and neglected until the state took them away from their homes. Is the interconnectedness of it all becoming any clearer now?
The primary focus – other than that of the most obvious need to set right the terrible wrong that has been done to the Pelletier’s by returning Justina to her home forthwith – should be on one particular point of entry into the system; that of a 51A referral from a hospital’s child protection team. As Neil Swidey and Patricia Wen noted in their Globe article on December 15, 2013, Boston Children’s Hospital files about 400 51A referrals a year, most of which are for neglect, itself an extraordinarily broad term, while an estimated 2 to 4 percent – or 8 to 16 cases a year – involve allegations of medical child abuse.
More to the point is the question of why so many children enter the ER at Boston Children’s Hospital with physical symptoms and, in some cases, a working diagnosis of a rare disease, only to wind up in the psychiatric unit known as Bader 5. While correlation does not necessarily equate to causation, is it entirely unreasonable to speculate as to whether Elizabeth Wray’s departure from Boston Children’s Hospital the day before Justina’s arrival was merely coincidental? Was there a slot ready to be filled in the 26-bed facility?
It isn’t an easy puzzle to solve. An interview with Beth Maloney here, a comment by Jim Ianiri there, an interview with Nurse Katie Higgins there. Questions remain about at least two other children that were said to have been admitted to Boston Children’s Hospital last year. “I know personally of two other families who also are under a gag order by Boston Children’s Hospital,” said Cristy Balcells during an interview last November.4
When Beth Maloney was asked what she thought was going on, she candidly replied that she didn’t know for certain, speculating that it may be a question of Harvard egos at work. She added, however, that in both of the two cases she’d handled, Boston Children’s Hospital did the same thing that it did to the Pelletier family. Specifically, what she said was: “Is not just Mitochondrial childen that they go after. I’ve had two children with an autoimmune disorder that effects the brain, and they did the same exact thing; diagnosed the children with somotaform disorder. There is a psychologist at Boston Children’s Hospital who is very invested in that – Somatoform disorder – she’s written papers about Somatoform disorder.”
The Mounting Evidence
Are young psychiatric residents actually allowed such broad and sweeping powers? The answer is that it would certainly appear to be the case. And, the evidence continues to acccumulate in support of that thesis. According to a document on Boston Children’s Hospital’s web site, Child & Adolescent Psychiatry Residency Training Program, which appears to be provided to all new residents in psychiatric training, and which is signed by David R. DeMaso, the unique training goals of rotation in the Psychiatry Inpatient Service program
are to teach residents to evaluate and manage children, adolescents, and their families, who present with severe psychiatric illnesses, or co-morbid medical-psychiatric illnesses, requiring care in a more restrictive inpatient setting. In this setting our residents function as the primary clinician for two patients. This involves all aspects of patient care, from family, to individual, to pharmacotherapy. They also provide medication management for two additional patients. During this four-month rotation residents receive supervision from their team attendings and staff social workers, as well as from the medical director.
The ‘Evil Spirits’ of Children’s Hospital
The Massachusetts Board of Registry in Medicine rolled out a ruling against a doctor employed by Boston Children’s Hospital last year. A close reading of the ruling and its associated paperwork would strongly indicate that psychiatric interns at BCH have precious little oversight.
The case involved one Assistant Professor of Psychiatry by the name of Enrico Mezzacappa, M.D., who was “the senior attending psychiatric assigned to supervise” various individuals as they handled the care of patients.
Dr. Mezzacappa, according to the ruling, did not “see patients in the clinic in his role as the Resident Director.” Apparently, his oversight consisted of conferring with his underlings, and signing off on their reports.
The problem in this particular case arose when a second-year Fellow came to believe a young girl – Patient A – “was being hurt by evil spiritual entitites.” The Attending physician apparently also came to believe this. Mezzacappa’s participation in these events extended to that of going so far as to “coordinate a spiritual consultation on Patient A’s behalf and on behalf of the outpatient treatment team from a Christian chaplain at Children’s Hospital.”
Read the consent order and decide for yourself just how great a leap of faith it takes to go from signing off on a possible case of “evil spiritual entitites” being the underlying cause of a psychiatric disorder, to signing off on the possibility that up tp 50 percent of pediatric admissions to your hospital’s emergency room may involve somatoform disorder, rather than an actual physical ailment.
The Fellow, Dr. Raymond W. Kam, was dismissed from the hospital, according to his ruling, which further details the abysmal lack of oversight in the BCH facility that allowed the affair to flourish.
I know it’s hard to believe. Don’t take my word for it, read the documents for yourself to better understand their implications.
Do be certain to read the civil complaint in the lawsuit most recently filed by Barry Pollack against DCF and Martha Coakley. It provides a handful of critical pieces to the puzzle, including the role of Gary Gosselin in coercing a mother and father into signing their child into Bader 5 under the threat of involving DCF and the possible loss of custody.
A close reading of the Massachusetts Executive Office of Health and Human Services, Department of Public Health’s publication of April 15, 2013, entitled Conduct of Human Subject Research, clearly indicates that few of the protections that are required by law to be extended to the subjects of such research were applied in Justina’s case.
The 55-page document clearly details the policies and procedures that must be followed according to both state and federal law. The policy document states, in part,
Children who are wards of the State or any other agency, institution, or entity can be included in research approved under 45 CFR 46.406 and 45 CFR 46.407 only if such research is: 1) related to their status as wards; or 2) conducted in school, camps, hospitals, institutions, or similar settings in which the majority of children involved as participants are not wards. If the research meets the criteria above, the IRB requires the appointment of a participant advocate for each child who is a ward, in addition to any other individual acting on behalf of the child as guardian or legally authorized representative. One individual may serve as an advocate for more than one child. The advocate must have necessary expertise and experience, and agree to act in the best interest of the child. Only those advocates without any conflicts of interest can be appointed as advocates.
If you’re wondering what the applicability of a document concerning human experimentation may be, ask yourself whether diverting a young girl from her appointment with a designated physician and into the psychiatric ward on the theory that there is up to a 50/50 chance that she is suffering from an imagined ailment constitutes an experimental procedure. Bear in mind as you ponder that one, that Tuft’s mitochondrial specialist Dr. Korson wrote that it seemed to him that Justina’s treatment team was “out to prove the diagnosis at all costs.”
There is much more of interest in the Human Rights Handbook, as last Revised November 9, 2007.
The Human Rights Handbook begins with an appropriate admonition, “Senior staff and managers have a responsibility to provide the leadership and model the values necessary to proactively implement this policy, and to ensure that DMH maintains a service environment that promotes respectful and responsive interactions with Clients.”
1. When a child in DSS custody is admitted to a Facility, the Facility should remind the child’s DSS social worker of the application of the Five Fundamental Rights, and should provide him or her with a copy of these guidelines. In addition, these guidelines should be available in DSS offices.
2. In the absence of specific information concerning a risk of harm to an individual child, it should bepresumed that each child shall be permitted to exercise the rights provided in the statute without restriction. Facility staff should ask the child’s DSS social worker whether DSS has determined that anyone would create such a risk.
3. Facilities may not limit the child’s right of access to an attorney, legal advocate, physician, psychologist, clergy member or social worker.
4. Facilities may restrict any rights in order to conform to judicial orders relating to a child. Such orders might include “no contact” orders as conditions of probation, DSS or DYS custody, 209A protective orders, or other orders relative to custody and visitation.
5. Telephone access should be provided in such a way as to permit children to make and receive confidential telephone calls. Unless a child’s right to use the telephone is restricted in accordance with the statute and these guidelines, he or she should be able to carry on telephone conversations without being overheard by staff or other children.
6. For good cause, and with specific documentation in the child’s records, a child’s mail may be opened and inspected in front of the child, without it being read by staff, for the sole purpose of preventing the transmission of contraband.
7. Facilities may limit the exercise of other specific rights, namely, access to telephone and visitors of a child’s choosing, only if the exercise of the right creates a substantial risk of serious harm to the child or others, and if less restrictive alternatives to a restriction have failed or would be futile to attempt. For children, the term harm has physical as well as development components, and may include a substantial risk that the exercise of the rights will have a severe, negative effect on the child’s development or mental health. Ongoing assessment of this risk should include consideration of the child’s age, and present condition, as well as other developmental factors which might influence the child’s exercise of judgment, together with information supplied by parents, and other legally authorized representatives, including DSS. Where DSS has determined that telephone contact or visits with a particular individual or individuals creates a substantial risk of serious harm, DSS should communicate its concerns to the Facility, together with the reasons for its concerns. This communication can be made verbally, or in writing, but should be sufficiently detailed to enable the Facility Director to make a decision regarding such contact.
8. In the event the Facility disagrees with DSS’s assessment of the risk of harm, or believes that there are less restrictive alternatives to the restrictions suggested by DSS, the Facility should inform DSS so that DSS can take whatever further action it deems appropriate, including consideration of seeking a court order relative to the particular issue. If DSS informs the Facility that it intends to seek a court order, then the Facility should impose the restriction for a reasonable time in order for DSS to bring the matter to court. DSS should provide the Facility with an opportunity to present its position to the court, if the Facility so desires.
9. Any such restrictions should be subject to ongoing review by the Facility and DSS to ascertain whether the restrictions need to remain in place and whether less restrictive alternatives are available and feasible.
10. The Facility should document in the child’s record the facts that support imposition of therestriction, as well as its ongoing assessment of the continuing need for the restriction, any available less restrictive alternatives, and, if less restrictive alternatives are not available or feasible, the reasons for such.
11. Nothing in these guidelines precludes a child from filing a human rights complaint, or seeking other remedies if he or she believes his/her human rights have been unduly restricted.
Unanswered Questions Remain
It was not too long ago that some of Massachusetts’ legislators tried to file a resolution with bi-partisan support calling for Justina’s release. That move, however, was blocked by a politician claiming that it would violate the separation of powers between the judiciary and the legislature.
What remains to be squarely addressed is what is to be done with judges who disregard the applicable law as a matter of routine? Advocates have seen Judge Johnston hand down a constitutionally impermissible decree banning the Pelletier family – as well as their attorney – from discussing their case with the media. Others have experienced the very same thing. I am aware of some cases in which the equivalent of a gag order was imposed by the terms of a reunification plan, the only court order backing that up being a blanket order to “comply with CPS” on peril of a contempt filing. It is the judges who act as the gatekeepers to the system, sanctifying the actions of administrative agencies.
Scant attention has been provided to Harvard’s Judge Baker Children’s Center, the crucial distinction between that facility and Bader 5 being the point of entry. Perhaps some journalist will run with that story. Perhaps another may reveal the origins of the Justice Resource Institute, and, much more importantly, the specific direction that it is taking today. Part of the answer is suggested by a New York Times blog entry of recent vintage.
1. Shepardizing a case to see whether it is still good law is always good practice, but this has become something of a lost art with the advent of web-based citations. In any event, Sevigny’s Case has been cited over 50 times in other cases and law journals, and it was most recently cited in Commonwealth v. Sepheus, 82 Mass. App. Ct. 765 (2012), holding that “an opinion given by an expert will be disregarded where it amounts to no more than mere speculation or a guess from subordinate facts that do not give adequate support to the conclusion reached,” which is how Judge Johnston, it seems to me, should have applied the law to effectively trash the somatoform disorder diagnosis right out of the box. Assuming that the conflicting testimony passed that test, when confronted with the conflicting medical testimony of Tuft’s diagnosis on the one hand, and the seemingly reasoned and logical testimony of Children’s Hospital on the other, he ought not have refereed the decision at all. See also for more recent reference Aleo v. SLB Toys USA, INC., 466 Mass. 398 (2013) (same use of citation).
2. For sake of clarity, internal citations and quotation marks have been omitted. This sentiment appears time and again in the case law, variously punctuated. See for example In Re Adoption Of Hamal, No. 13-P-318 (Mass. App. Ct. Oct. 2, 2013); In Re Adoption of Margaret, No. 13-P-215 (Mass. App. Ct. Sept. 24, 2013); In Re Care And Protection Of Yetta, No. 12-P-1540 (Mass. App. Ct. Apr. 10, 2013).
3. Care and Protection of Edith, 421 Mass. 703 (1996).
4. One Massachusetts-based family advocate and I have entered into a confidential but entirely productive mutual exchange of documents and other information. Neither one of us has been disappointed by the exchange, and we share the frustration of knowing that some people are in effect walking around with their own little collection of puzzle pieces tucked away in their pockets. Difficult jigsaw puzzles, to use the closest analogy, are always more readily solved when people sit together on a back porch and work together to fill in all the gaps.