IN THE STATE OF CONNECTICUT SUPERIOR COURT AT MERIDEN STATE OF CONNECTICUT, DOCKET NUMBER: CR-02-020921 Plaintiff v. JUDITH SCRUGGS, Defendant November 3, 2003 AMICUS CURIAE BRIEF IN SUPPORT OF DEFENDANT�S MOTION FOR DISMISSAL OR IN THE ALTERNATIVE A NEW TRIAL In support of the Defendant�s Motion for Dismissal or in the alternative a Motion for a New Trial the following Amicus brief is submitted to the court for consideration. INTRODUCTION In response to the prosecutor, James Dinnan, Esq. (�Dinnan�) and The Department of Children and Families (�DCF�) failure to prove their case who filed baseless charges which were without merit and not founded in law or any known or unknown medical study or expert testimony to show cause or even a casual link between the environment of Judith Scruggs� (�Scruggs�) home and the psychological well being of her son Daniel Scruggs (�Daniel�) who hanged himself. Connecticut DCF Watch (�CDW�) and New England Parent Advocate Network (�NEPAN�) will show that DCF along with Dinnan�s allegation and charges were fabricated do to the fact that DCF statutes, policies, practices and customs are so broad and infinite and most definitions on what is neglect and abuse is, are never supported by known medical standards which makes it unlawful and unconstitutional in ever respect. I. IS DCF SUBJECT TO THE CONSTITUTIONAL RESRICTIONS AND PROHIBITION AND IS CLUTTERING A DANGER OR RISK TO CHILDREN? Yes they are subject to the Constitution in all respects and are subject to the same level of proof. This is especially so with the 4th and 14th Amendment like the police are. The Constitution is applicable to DCF investigators in the context of an investigation of alleged abuse or neglect. DCF and it�s employees are not entitled to any exceptions to the Constitution because there are none. DCF here in Connecticut is engaged in criminal matters, not civil. DCF is also must abide by the rule of evidence and not hear say or charges not based on any known facts. This issue is brought out best in Walsh v. Erie County Dept. of Job and Family Services, 3:01-cv-7588 and this case has great applicability in the Scruggs case. The judge also ruled in Walsh on the fact that Child Protective Services (�CPS�) is engage in criminal proceedings, not civil proceedings. The social workers argued, �the Fourth Amendment was not applicable to the activities of their social worker employees.� The social workers claimed, �entries into private homes by child welfare workers involve neither searches nor seizures under the Fourth Amendment, and thus can be conducted without either a warrant or probable cause to believe that a child is at risk of imminent harm.� The court disagreed and ruled: �Despite the defendant�s exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose request to enter, however benign or well-intentioned, are met by a closed door.� The Court also stated �The Fourth Amendment�s prohibition on unreasonable searches and seizures applies whenever an investigator, be it a police officer, a DCFS employee, or any other agent of the state, responds to an alleged instance of child abuse, neglect, or dependency.� The social worker�s first argument, shot down by the court. The social workers then argued that there are exceptions to the Fourth Amendment, and that the situation was an �emergency.� Who gave them the authority to enter the home without a warrant? They state, the �Defendants argue their entry into the home, even absent voluntary consent, was reasonable under the circumstances. They point to: the anonymous complaint about clutter on the front porch; and the plaintiff�s attempt to leave. These circumstances, the defendants argue, created an �emergency situation� that led Darnold and Brown reasonably to believe the Walsh children were in danger of imminent harm. Thus is the old �emergency� excuse that has been used for years by social workers. The Court again disagreed and ruled: �There is nothing inherently unusual or dangerous about cluttered premises, much less anything about such vaguely described conditions that could manifest imminent, or even possible danger or harm to young children. If household �clutter� justifies warrant less entry and threats of removal of children and arrest or citation of their parents, few families are secure and few homes are safe from unwelcome and unjustified intrusion by state officials and officers.� The Court went on to rule, �They have failed to show that any exigency that justifies warrantless entry was necessary to protect the welfare of the plaintiff�s children. In this case a rational jury could find that �evidence points to the opposite conclusion� and a lack of �sufficient exigent circumstances to relieve the state actors here of the burden of obtaining a warrant.� The social worker�s second argument, shot down by the court. The social workers then argued that they are obligated under law to investigate any reported case of child abuse, and that supersedes the Fourth Amendment. They argued, �Against these fundamental rights, the defendants contend that Ohio�s statutory framework for learning about and investigation allegations of child abuse and neglect supersede their obligations under the Fourth Amendment. They point principally to � 2151.421 of the Ohio Revised code as authority for their warrantless entry into and search of the plaintiff�s home. That statute imposes a duty on certain designated professionals and persons who work with children or provide child care to report instances of apparent child abuse or neglect.� This is the old �mandatory reporter� excuse. The Court disagreed and ruled: �The defendant�s argument that the duty to investigate created by � 2151.421(F)(1) exempts them from the Fourth Amendment misses the because, not having received a report described in � 2151.421(A)(1)(b), they were not, and could not have been, conducting an investigation pursuant to � 2151.421(F)(1).� The social worker�s third argument, shot down by the court. The Court continues with their chastisement of the social workers: �There can be no doubt that the state can and should protect the welfare of children who are at risk from acts of abuse and neglect. There likewise can be no doubt that occasions arise calling for immediate response, even without prior judicial approval. But those instances are the exception. Other wise child welfare workers would have a free pass into any home in which they have an anonymous report or poor housekeeping, overcrowding, and insufficient medical care and, thus perception that children may be at some risk.� The Court continues: �The anonymous phone call in this case did not constitute a �report� of child abuse or neglect.� The social workers, Darnold and Brown, claimed that they were immune from liability, claiming qualified immunity because �they had not had training in Fourth Amendment law.� In other words, because they thought the Fourth Amendment did not bind them, they couldn�t be sued for their �mistake.� The police officers, Chandler and Kish, claimed that they couldn�t be sued because they thought the social workers were not subject to the Fourth Amendment, and they were just helping the social workers. The Court disagreed and ruled: �That subjective basis for their ignorance about and actions in violation of the fourth Amendment does not relieve them of the consequences of that ignorance and those actions.� The Court then lowers the boom by stating: �The claims of defendants Darnold, Brown, Chandler and Kish of qualified immunity are therefore denied.� II. IS IT MALTREATMENT OF A CHILD OR NEGLECT WHEN A CHILD WITNESSES AND IS EXPOSED TO AN ENVIRONMENT OF DOMESTIC VIOLENCE? It is illegal and an unconstitutional practice to remove children, which results in punishing the children and the non-offending parent if the children are exposed to domestic violence. In a landmark class action suit in the United States District Court, Eastern District of New York, U.S. District Judge Jack Weinsein ruled on Nicholson v. Williams, Case No.: 00-cv-2229. This suit challenged the practice of New York�s City�s Administration for Children�s Services of removing the children of battered mothers solely because the children saw their mothers being beaten by husbands or boyfriends. Judge Weistein ruled that the practice is unconstitutional and he ordered it stopped. During the trial several leading national experts testified on the impact on children of witnessing domestic violence, and the impact on children of being removed from the non-offending parent. a. Views of Experts on Effects of Domestic Violence on Children, and defining witnessing domestic violence by children as maltreatment or emotional neglect is a mistake. �great concern [regarding] how increased awareness of children�s exposure [to domestic violence] and associated problems is being used. Concerned about the risk adult domestic violence poses for children, some child protection agencies in the United States appear to be defining exposure to domestic violence as a form of child�Defining witnessing as maltreatment is a mistake. Doing so ignores the fact that large numbers of children in these studies showed no negative development problems and some showed evidence of strong coping abilities. Automatically defining witnessing as maltreatment may also ignore battered mother�s efforts to develop safe environments for their children and themselves.� Ex. 163 at 866. b. Effects of Removals on Children and on the Non-offending Parent. Dr. Wolf testified that disruptions in the parent-child relationship might provoke fear and anxiety in a child and diminish his or her sense of stability and self. Tr. 565-67. He described the typical response of a child separated from his parent: �When a young child is separated from a parent unwillingly, he or she shows distress � At first, the child is very anxious and protests vigorously and angrily. Then he falls into a sense of despair, though still hyper vigilant, looking, waiting, and hoping for her return �� A child�s sense of time factors into the extent to which a separation impacts his or her emotional well-being. Thus, for younger children whose sense of time is less keenly developed, short periods of parental absence may seem longer than for older children. Tr 565-65. See also Ex. 141b. For those children who are in homes where there is domestic violence, disruption of that bond can be even more traumatic than situations where this is no domestic violence. Dr. Stark (Yale New Haven Hospital researcher) asserted that if a child is placed in foster care as a result of domestic violence in the home, then he or she may view such removal as �a traumatic act of punishment � and [think] that something that [he] or she has done or failed to do has caused this separation.� Tr. 1562-63. Dr. Pelcovitz stated that �taking a child whose greatest fear is separation from his or her mother and in the name of �protecting� that child [by] forcing on them, what is in effect, their worst nightmare, � is tantamount to pouring salt on an open wound.� Ex. 139 at 5. Another serious implication of removal is that it introduces children to the foster care system, which can be much more dangerous and debilitating than the home situation. Dr. Stark testified that foster homes are rarely screened for the presence of violence, and that the incidence of abuse and child fatality in foster homes is double that in the general population. Tr 1596; Ex. 122 at 3-4. Children in foster care often fail to receive adequate medical care. Ex. 122 at 6. Foster care placements can disrupt the child�s contact with community, school and siblings. Ex. 122 at 8. The leading child experts stated clearly and the judge agreed that when a child is exposed to an environment of domestic violence, it is not maltreatment of a child or what DCF calls neglect. In the case of Judith Scruggs, a cluttered or messy home doesn�t even reach any level of maltreatment or neglect. A cluttered or messy home is such a non-issue and is benign compared to domestic violence. III. HAS DCF AND THE PROSECUTOR MISLEAD THE COURT AND THE JURY BY MAKING MEDICAL CONCLUSIONS WITHOUT SUPPORTIVE TESTIMONY FROM MEDICAL EXPERTS IN ORDER TO MAKE THOSE CONCLUSIONS? Yes they have and it should be noted and brought to the courts attention of a total absent of evidence to support their bogus theories in this matter. Mr. Dinnan failed to show through expert witness testimony on his theory on how much clutter and to what degree if any, where inanimate objects are a risk to any child and specifically to Daniel. Mr. Dinnan failed to show through expert witness testimony that a cluttered home if shown to be dangerous, to what psychological effect it has on a child. The big problem lies in the fact that suicide is NOT linear or in other words, cause and effect. Mr. Dinnan would of found this out if he had an expert on the subject matter of teenage suicide. The jury is not medically trained and should not of been allowed to make any medical conclusions or left to their own devices assuming that a cluttered house is dangerous which it is not, and that a cluttered house influences an individuals behavior when there was no facts in evidence to support either theory, because that�s all what Mr. Dinnan put to the jury was total theories. IV. WAS THE SCRUGGS HOME A PLACE OF REFUGE OR A PLACE OF DANGER AND RISK? It is crystal clear on whether the Scruggs home for Daniel was a place of refuge or a place of danger. Over the last 10-years or so, we have seen shootings by children who were pushed to the point of hurting and even killing their classmates because of bullying. Daniel�s behavior proved to be the opposite. Daniel avoided the situation by rejecting school but was drawn to the comfort and safety of his home. Like most children, they are oblivious to their messy room and/or home as all of us may remember when we were children. Daniel felt comforted in his home because this is the place he would retreat to. If this was not the case, Daniel would of retreated to another place he felt safe in. So to say the clutter of the Scruggs home had some type of influence on Daniel is totally ignorant of the facts and human behavior. V. IS THE BOARD OF EDUCATION AND EMPLOYEES LIABLE FOR HIS OR HER CULPABLE ACTION OR INACTION IN THE SUPERVISION, OR CONTROL OF HIS OR HER SUBORDINATES; FOR HIS OR HER ACQUIESCENCE IN THE CONSTITUTIONAL DEPRIVATION OR FOR CONDUCT THAT SHOWED A RECKLESS OR CALLOS INDIFFERENCE TO THE RIGHTS OF OTHERS? As in a civil rights complaint, � 1983 places liability on a person who "subjects, or causes to be subjected" another to a constitutional deprivation. See 42 U.S.C. � 1983. This language suggests that there are two ways a defendant may be liable for a constitutional deprivation under � 1983: (1) direct, personal involvement in the alleged constitutional violation on the part of the defendant, or (2) actions or omissions that are not constitutional violations in themselves, but foreseeably lead to a constitutional violation. The Court of Appeals for the Ninth Circuit offered a most cogent discussion of this issue in Arnold v. International Bus. Machines Corp., 637 F.2d 1350 (9th Cir. 1981): A person 'subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.... Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. Id. at 1355 (emphasis added) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). A principal is liable under � 1983 if s/he �does an affirmative act, participates in another�s affirmative acts, or omits to perform an act which [s/]he is legally required to do.� Causing constitutional injury. Johnson v. Duffy, 588 F. 2d 740, 743-44 (9th Cir. 1978). A supervisor is liable for �his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation �; for conduct that showed a reckless or callous indifference to the rights of others.� Watkins v. City of Oakland, 145 F. 3d 1087, 1093 (9th Cir. 1997) A supervisor can be liable in his individual capacity if �he set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he knew or reasonably should have known would cause others to inflict the constitutional injury.� Larez v. City of Los Angeles, 946 F. 2d 630, 646 (9th Cir. 1991). �Supervisory indifference or tacit authorization of subordinates� misconduct may be a causative factor in constitutional injuries they inflict.� Slakan v. Porter, 737 F. 2d 368, 373 (4th Cir. 1984). �We have explained the nature of the causation required in cases of this kind in Johnson v. Duffy, 588 F. 2d 740 (9th Cir. 1978). There, we held that for purposes of � 1983 liability the requisite causal chain can occur through the �setting in motion [of] a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.� Id. at 743-44. There is little question here that Cooper and Roderick should have known that falsely placing the blame for the initial Ruby Ridge incident on Harris would lead to the type of constitutional injuries he suffered.� Harris v. Roderick, 126 F. 3d 1189 (9th Cir. 1997). The death of Daniel with out a question could have been prevented by the Board of Education (the �board�) if the board took action and abated the serious health risk to Daniel. By their inaction they wantonly allowed an unsafe environment to exist and failed to provide Daniel a safe environment to learn. Daniel�s mother had told them numerous times and they were put on notice. Daniel was not a victim of his home environment, he was a victim of being tormented and was terrorized by other students. VI. WAS THIS PROSECUTION POLITICALLY MOTIVATED AND WAS IT A MALICIOUS PROSECUTION AND A SHAM PROCEEDING? Without question it was politically motivated by DCF and the prosecution. It shows how dysfunctional DCF is when they are quick to blame an innocent mother when THEY closed the case and they have to cover their sorry rear end. Judge Andrew Napolitono even stated it was politically motivated. A week before Daniel committed suicide; DCF closed the case and gave Judith Scruggs basically a clean bill of health. And then with malice and forethought DCF along with the prosecutor retroactively after the death of Daniel alleged that the cluttered home was the cause of Daniel�s death even though DCF never has medical experts to support any of their theories or allegations. This is how DCF operates on a daily basis. All they usually have is just allegations and theories and the Scruggs case is no different in their sham proceedings. A sham proceeding is not due process. DCF and the prosecution is overreaching by manufacturing unproven false charges. DCF and the prosecution connected DOTs that can�t be connected what so ever. Defense attorney Norris correctly stated, �This is the ultimate insensitivity. You just lost your child, and now the state is prosecuting you.� The under signed knows all to well of loosing a child in death and then you go through the grieving process thinking what you could of done to prevent it but in reality it wasn�t your fault. Judith Scruggs never assisted in her son�s suicide nor did she contribute toward it. What the prosecution and DCF did is inhuman and repulsive. It is no wonder why DCF is the most hated and the most reviled agency in the state and that comes from the police and health professionals and the public. Where they routinely abduct children from safe homes with out probable cause or imminent danger present, which is required under the warrant clause. Anonymous reports are NEVER probable cause and the United States Supreme Court states there is only one definition to probable cause. Jeff Atkinson, an adjunct professor at DePaul University law school in Chicago and the author of the ABA Guide to Family Law, agrees. �It would be imposing an unusually high burden on parents to hold them responsible for their child�s suicide unless they had very specific information that the child was at a high degree of risk.� In the case of Scruggs, Daniel felt the only way to stop the abuse by other students was to remove himself from the situation by staying home from school because the Board of Education and DCF failed to address the true perpetrators and that was the bullies. Daniel would be here today if DCF and the Board removed the other children from school and had them treated for their violent behavior. Daniel was fine and needed no counseling because he just wanted to be left alone. Once again, DCF wants to treat the wrong person when all they had to do was to create a safe environment and Daniel would have been fine but DCF and the prosecutors failed like always. The experts will tell you that if teenagers want to kill themselves they will never tell anybody until it�s to late. What DCF and the prosecution did is typical behavior on their part. A parent goes to DCF as did Judith Scruggs for assistance and instead of getting helpful and concerned people to help you, they turn around and harm the parent, which in turn harms the child. Until DCF stops prosecuting innocent parents and helps them as they claim that is their mission. They will continually be harming both child and parent in unlawful and unconstitutional seizure of children, which is inhuman, and of a terrorist nature. All DCF employees are �government officials� and are constrained by the Constitution and the protections afforded to parents as stated clearly by the 4th, 5th, 7th and 9th U.S Circuit Court and many District courts. DCF and the prosecutor also have a class-based bias toward parents compared to non-parents. Strangers committing the same acts of neglect or abuse are treated differently then parents. Conclusion There is no doubt that Judith Scruggs is not guilty of any chargeable crime nor is she responsible for the death of her son. This malicious prosecution just proves once again the gross incompetence of DCF and their inability to help needed families, not hurt them. This is a miscarriage of justice by any definition and this case should have been dismissed shortly after the petition was filed for being frivolous and meritless. What DCF does with the help from the Attorney Generals Office is to cover up the fact that every thing they do has to do with criminal matters, not civil. They like to call it civil in order to cover up the fact that their ultimate goal is criminal prosecution and they engage in the termination of Constitutional rights of being a family. What if Judith Scruggs son killed himself and the home was not cluttered and it happened in a rich neighborhood, what manufactured excuse would DCF and the prosecution make up? I forgot DCF doesn�t bother with rich neighborhoods; they only discriminate against poor people or those with little means. My advice to any parent in the state of Connecticut is NEVER, EVER look for any help or assistance from DCF, they will stab you in the back each and ever time and they will abduct your children like dogs and give them away to strangers who may abuse or kill them. It is sickening on how many children are subject to abuse, neglect and even killed at the hands of Child Protective Services. These numbers include DCF in Connecticut. Perpetrators of Maltreatment Physical Abuse Sexual Abuse Neglect Medical Neglect Fatalities State 160 112 410 14 6.4 Parents 59 13 241 12 1.5 Number of Cases per 100,000 Children These numbers come from The National Center on Child Abuse and Neglect (NCCAN) According to the federal government, children are safer in the arms of their parents, not in DCF custody. It�s hard to believe that DCF like all the rest of CPS agencies are responsible for more abuse and death of children then parents could ever be. This further proves DCF is unable to discern a safe home from an unsafe home. CPS agencies across the U.S. kill 6.4 children out of every 100,000 children where parents only are responsible for 1.5 for every 100,000. Judith Scruggs is not the problem; DCF is and will always be the problem. This mother doesn�t need DCF falsely blaming her for her son�s death. She needs to be supported and given a helping hand but DCF is incapable and lacks any humanity but to blame her for a tragic event in her life she will have to live with. She doesn�t need DCF blaming her with their baseless opinions and theories that are not based in reality or fact. DCF is NOT a force for compassion or for good, they are a force to inflict as much pain and suffering on both children and parents. DCF is absolutely clueless on the permanent damage they do to children when they illegally abduct children with an unlawful and unconstitutional warrant, and when they maliciously prosecute innocent parents were no crime has been committed. The prosecutor should of told DCF there was never a case here. WHEREFORE, the Defendants Motion for Dismissal should be GRANTED or in the alternative a new trial even though what DCF and the prosecutor alleged is not prosecutable and lacks merit and is NOT supported by any medical expert opinion. In addition to this, the prosecution and DCF should be sanctioned and fined for filing false charges, making up false medical claims not in evidence, wantonly engaged in a malicious prosecution and a sham proceedings, misleading the court and jury with baseless theories and allegation without any evidence what so ever and causing great harm to Judith Scruggs by prosecuting the wrong individual. Mr. Dinnan should have been prosecuting the bullies who truly are responsible for Daniel being pushed to the point of taking his own life. Judith and Daniel Scruggs are both victims of the group of thugs from school. So is Mr. Dinnan telling all thugs and the public it�s permissible to harass and terrorize children up to and including pushing them to take their own life and Mr. Dinnan will look the other way? __________________________________ _________________________________ Thomas Dutkiewicz, Founder Connecticut DCF Watch Aimee Dutkiewicz, Founder NEPAN - New England Parent Advocate Network 32 Terryville Av, #3 Bristol, CT 06010 (860) 833-4127 [email protected] 32 Terryville Av, #3 Bristol, CT 06010 (860-314-8268 [email protected] CERTIFICATE OF SERVICE This is to certify that a copy of the above-named document was mailed/faxed to the following interested persons on November 3, 2003. James Dinnan, Esq. Assistant State�s Attorney 54 West Main Street Meriden, CT R. Norris, Esq. 254 Prospect Avenue Hartford, CT ______________________________ Thomas Dutkiewicz 32 Terryville Av., #3 Bristol, CT 06010 (860) 585-1136 |
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