Monthly Archives: December 2019

First Amendment Rights

By Connie Reguli

Connie Reguli has practiced family law and litigation for 25 years plus. Also known as an advocate for child welfare reform.

In 1984, the United States Supreme Court entered an opinion in Garrison v. La., 379 U.S. 64, (1964) in which discussed a dispute between the district attorney and a judge.  The attorney held a press conference where he issued a statement disparaging judicial conduct.  The district attorney was arrested under the criminal sedition laws of New York.  The court stated that where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest secured by the constitution, in the dissemination of truth.  Even where the utterance is false, the great principles of the Unites States Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.  Since an erroneous statement is inevitable in free debate, it must be protected if the freedoms of expression are to have the breathing space that they need to survive, only those false statements made with the high degree of awareness of their probable falsity may be the subject of either civil or criminal sanctions.  For speech concerning public affairs is more than self-expression, it is the essence of self-government.  The First and Fourteenth Amendments embody a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

On July 29, 2019, the Sixth Circuit Court entered an opinion regarding the use of social media for the criticism of public officials.  In Novak v. City of Parma, 18-3373 (6th Cir. July 29, 2019) the Court examined the use of Facebook by a citizen to criticize and ridicule the local police department.  The page was set up to look like an official cite and ran fake news stories making the police department appear as incompetent racists.  The police department subpoenaed records from Facebook to find out the person that had caused this public harassment of law enforcement.  The police department claimed that Plaintiff had made several “material misrepresentations and omissions.”  Claiming that Plaintiff have unlawfully impaired the department’s functions, Plaintiff was criminally charged and arrested.  Plaintiff was acquitted of criminal charges when Plaintiff showed that other than twelve minutes of phone calls to the department, there was no disruption to its function.  Plaintiff sued for First Amendment violations.  The Sixth Circuit Court examined whether the state actor defendants would enjoy qualified immunity and be exempt from civil liability.  The Court denied qualified immunity and the Court’s analysis of the First Amendment rights of the plaintiff are relevant to the status to the case at bar. Novak v. City of Parma, July 29, 2019.

The Sixth Circuit stated that Plaintiff had a claim for First Amendment retaliation if (1) the plaintiff engaged in constitutionally protected activity, (2) the state actors adverse actions caused the Plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing that activity, and (3) the state actors were motivated, at least in part, by his exercise of his constitutional rights. Pg. 6. 

The Sixth Circuit also stated that Plaintiff had a claim for First Amendment prior restraint if he could show that an administrative or judicial order forbid his protected speech in advance.  Pg. 13. In Novak, the plaintiff alleged that the police department had issued a press release threatening to prosecute him, sent a letter and an email to Facebook demanding the page be taken down, and confiscated his computer equipment.  Plaintiff claimed that this constituted an implicit threat of governmental action.  Pg. 14.  A prior restraint must raise a legal impediment to speech with the classic examples of restraining orders and court issued injunctions. But such a formality is not necessary to constitute a prior restraint.  The Sixth Circuit stated that the announcement that they had opened an investigation on Plaintiff was sufficient to make a plausible claim for First Amendment prior restraint. 

In addition to the Novak case, other First Amendment authority in his prior Motion for Recusal (Circuit Court case).  The United States Supreme Court established a broad prohibition against prior restraints of speech in Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976).  The First Amendment thus accords greater protection against prior restraints than it does against subsequent punishment for a particular speech.  A system or prior restraint is in many ways more inhibiting than a system of subsequent punishment.  It is likened to being under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of the pen is more likely to be applied than suppression through a criminal process; the procedures do not require attention to the safeguards of the criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows.  It has been generally, if not universally, considered that it is the chief purpose of the First Amendment’s guaranty to prevent prior restraints upon publication.  The Nebraska Press case dealt with the Court’s attempts to suppress publication of events that happened in the courtroom and attempted to expand that limited exception to this prohibition.  The Supreme Court rejected this attempt to shut down reports of judicial proceedings, determining that the Courtroom was already in the public domain.

In 2002, the Middle District Court of Tennessee considered the government’s role in prior restraint on speech in the context of controlling a non-profit’s ability to raise charitable donations.  A prior restraint exists when the exercise of a First Amendment right depends on the prior approval of public officials.  The term prior restraint describes administrative and judicial orders that block expressive activity before it can occur.  Under a system of prior restraint, the lawfulness of speech turns on the advance approval of government officials.  Although prior restraints are not unconstitutional per se, they come to court bearing a heavy presumption against their validity.  Feed the Children, Inc. v. Metro. Gov’t of Nashville,  330 F. Supp. 2d 935, (M.D. Tenn. Mar. 21, 2002) 

The Tennessee Court of Appeals recognized the federal guidelines on prior restraint of speech in In re Conservatorship of Turner, M2013-01665-COA-R3-CV, (Tenn. Ct. App. May 9, 2014).  It acknowledged that an impermissible prior restraint exists when the exercise of First Amendment rights depends upon prior approval  of public officials.  A system of prior restraints bears a heavy presumption against its constitutional validity.  The Court did recognize the exception stated by the Sixth Circuit in which a person could be prohibited from repeating the same libelous and defamatory statements which have been judicially determined in proceedings to be false and libelous. 

The law in this country against prior restraints and sedition provide protection for the litigants that enter this Courtroom who seek a fair and impartial tribunal.  The restraints put on attorneys is more ambivalent.  Tenn. R. Sup. Ct. 8, Rule 8.4 prohibit attorneys from engaging in conduct prejudicial to the administration of justice.  A rule left open for broad interpretation and has included actions deemed as intending to “impugn the judiciary.”  Ward v. University of the South,  354 S.W. 2d 246 (1962).  

The right to a fair trial before an impartial tribunal is a fundamental constitutional right.” State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002). Article VI, section 11 of the Tennessee Constitution provides, “No Judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested . . . .” This provision is intended “to guard against the prejudgment of the rights of litigants and to avoid situations in which the litigants might have cause to conclude that the court had reached a prejudged conclusion because of interest, partiality, or favor.” Austin, 87 S.W.3d at 470. We have recognized that it is important to preserve the public’s confidence in a neutral and impartial judiciary. Bd. of Prof’l Responsibility v. Slavin , 145 S.W.3d 538, 548 (Tenn. 2004). Bean v. Bailey, 280 S.W.3d 798, 803, 2009 Tenn. LEXIS 296, *11 (2009)

Tennessee’s post adoption contract – the new “open adoption” standard

Dec 2019

By Connie Reguli

In 2019

https://lookaside.fbsbx.com/file/Post%20Adoption%20Contact%20Agreement%20law.pdf?token=AWw2R4uSr9k8Jv-KyYr3GVDYPF1IMHVBAh0YHsuTT50J6gJ14frF5yEPAb0H2trIeoFHSvZYTrIZuWqTopU8dniXU_UuwlWQDhCBs6H-JTHvMdDW9Ku6Zm0CwWRRj-EHB2rnYJVwk88RrF5HRg4MkEvKu9NB_rW3NYpG8xQdgYsWlJ85plMAvF7Uqih6u-gtrWZgUh_-Jkrqu0xEDkZTqFSS

BAM 💥 2.7million kids in care worldwide. Told you so.

By Connie Reguli

pdf.sciencedirectassets.com/271783/1-s2.0-S0145213417X00070/1-s2.0-S0145213416302873/main.pdf

Wrongful removal – Oklahoma – 2018

cases.justia.com/federal/appellate-courts/ca10/16-7079/16-7079-2018-08-27.pdf

By Connie Reguli

In this case a minor child sued for wrongful removal and violation of substantive due Process rights.

One of the most difficult aspects of a civil rights case is overcoming immunity. In this case the social workers and law enforcement officers claimed qualified immunity for violating the child’s (fourth amendment rights) and substantive due process rights of familial integrity when the child was removed from school for a forensic interview and told by the law enforcement officer that they were going to find him a better home.

In this appeal the tenth circuit court said that the case could proceed on violations of fourth amendment violations. However the court dismissed the claims for substantive due process rights stating that it was not “clearly established” that the child had the right of family integrity in this situation, that is, the fact that the officials impugned his father and damaged his relationship with him was not enough.

Note – analysis of substantive due process – the courts consideration of (1) a fundamental liberty interest vs (2) shock the conscious conduct by state actors.

Good analysis of the reasonableness standard in a claim for fourth amendment violations.

Note. The child was not removed from his home and the Interview revealed no disclosures of abuse.

Here are some excerpts:

The court compares fundamental right to the shocks the conscience standard. –

What is conscious shocking conduct?

Court says that they have implicitly used that standard before.

What you must show for violations of the substantive due process violations of family integrity.

By Connie Reguli

Connie Reguli addresses the Tennessee General Assembly – March 2019 on DCS corruption and abuse of power.

After my 2019 presentation to the Tennessee General Assembly, I received this post from a member of our Family Forward Project on Facebook.   It helps for you to hear the interpretations made by others so we can continue to develop our critical thinking on the problems we are facing in the child welfare reform movement.  
Angie Jones    2 hrs

Connie, I just got a chance to thoroughly listen to you before the Tennessee General Assembly and I must say, the Chairwoman, Representative Michael Curcio, and Representative Iris Rudder’s comments and questions are disturbing.

First, the chairwoman said “I have teacher friends who say that a child with behavioral issues believe it’s the fault of the parents”. Then she goes straight into “drug use”.

Let me address Mrs. Chairwoman (sorry didn’t catch her name)..so what you’re saying is that removing a child from his or her parents is often necessary because a child has bad behavior??? Are you even serious Mrs. Chairwoman ?? Should your children have been removed from YOU because a teacher “thinks” that YOU are the cause of behavior that’s not suitable to a teacher’s classroom?? Mrs. CHAIRWOMAN….I’m APPALLED that you even asked such a question as a member of the legislative body of Tennessee. Let me ask you…What is the line in the sand where a parent is FIT to UNFIT based on the behavioral issues of ANY American child?? Please tell me the line of demarcation.

To Representative Michael Curcio: When you addressed Mrs. Reguli, you asked if she was a medical expert in a condescending way to discredit her; this gives me great pause about you and your ability to govern. Mrs. Reguli is an “expert” in dealing with the juvenile and family court issues which include the broken Foster system and Child Protective Services. To insinuate one has to be a “medical expert” to properly quantify a problem teeters on ridiculous, closer to absurd. The truth of the matter is…these medical “experts” are part of the problem which Mrs. Reguli did not have time to expound on, but if she did, I’m certain her “expertise” in these issues would confirm this. One not need be an expert in any field to determine the broken, kids for cash system. Speaking of medical experts…why don’t you call the Cabinet and ask how much TRAINING a social worker gets in the MEDICAL FIELD??? Because when a social worker comes into the home of a citizen, they count and handle prescription medicines WITHOUT SANITARY GLOVES…and 4 out of 4 social workers I’ve dealt with could not do SIMPLE MATH to count the prescription meds. Also, this borders on a NATIONAL HEALTH CRISIS because of all people, the DEPARTMENT OF HEALTH just happens to NOT WEAR GLOVES to count these meds. Think of how much hand to disease contact these workers deal with out in the field each day. THIS IS UNACCEPTABLE. So Mr. CURCIO, when you asked Mrs. REGULI if she was a “medical expert”…..you should have asked if SOCIAL WORKERS are being trained properly to handle playing the role of God, doctor, psychiatrist, and so on. Perhaps you should learn the FACTS.

To Representative Iris Rudder: Boy, you just had me FLOORED with your comments. Did I hear you correctly say that a child “never deserves to be reunited with a parent if they use drugs”??? Is that what I heard you say?? And right here is where CPS is getting the majority of children. …👉prove the parent a drug user and the public will agree that the child doesn’t deserve to be with his or her family. And this is what happens. Well let me tell you Mrs. RUDDER…I’ve known many people who “used” drugs whom you would NEVER know they’re using. Should we take those kids too?? So a parent who smokes marijuana is UNFIT to parent?? If you believe that Mrs. RUDDER, I question your own mental fortitude. The question should be…why is the state TAKING CHILDREN because a parent uses drugs??? There’s plenty of fully functional drug users and abusers, I dare say they may be sitting right next to you in the legislative body. The “DRUG USE” excuse to separate parents from children is getting old, and the scheme is being told to the masses. That’s why only 3% of child removals are for actual ABUSE Mrs. RUDDER…that’s because NEGLECT needs NO PROOF. I’m APPALLED at your comments.

I’m sorry Connie, I think these representatives HAD to be addressed and I hope each and every one reads it.

My letter is on the way to you. I hope it makes it in time and thank you very much for advocating for the rights of children…AND parents across this nation.

Predictive Neglect vs Parental Rights

By Connie Reguli

In the State of Connecticut, the legislature and the courts have decided that parental rights may be interrupted by the government when the state can establish predictive neglect.

This is frightening in the world of parental rights defenders. I truly wish that some brave attorney in Connecticut would make a constitutional challenge on this standard.

In reviewing the doctrine of predictive neglect, the Connecticut Supreme Court explained that DCF need not wait until a child is actually harmed before intervening to protect that child.  As the Supreme Court stated, “Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.”  The Court explained, “The doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred… Thus, [a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect…”

Under the standard set forth in In re Kamari C-L, DCF could establish its case merely by proving by a preponderance of the evidence the existence of a “potential risk” of neglect. However, as the Supreme Court noted, under this standard, DCF could theoretically prevail even if there was only a 10% chance of future harm to a child.  According to the Supreme Court, the “potential risk” standard gives insufficient weight to the “combined family integrity interests of parent and child.”

In formulating a more burdensome standard, the Court held that in predictive neglect cases, the trial court must find with respect to each parent that, if the child were to remain in that parent’s independent care, the child would be denied proper care and attention, physically, educationally, emotionally or morally, or would be permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth.  Where parents will be caring for the child together, the trial court may treat the parents as a single unit in determining whether DCF has met its burden of proving predictive neglect.

This narrative was first published by Attorney Michael D. DeMeola, Esq. directly.  He can be reached in the firm’s Westport office at (203) 221-3100, or by e-mail at mdemeola@mayalaw.com.