From: Matthew Simechak
FaceBook Page: https://www.facebook.com/bullsimechak/
To: # Free Baby Holm FaceBook Group
Date: January 5, 2017
Time: 11:00 PM MT
So, I agree in principal with what you are saying. I think there are plenty of government actors out there who have, shall we say, less than the best of intentions. It’s easy to apply that standard to overworked, under paid, social workers, who often don’t or can’t take the deep dive into a case that they should to properly investigate that situation. I am much less comfortable slapping judges with that standard. Judicial recusals are much more rare, and often occur after a party has made a request for the judge to recuse. Occasionally, the court does discover a reason for recusal on its own, but that is most likely to happen when the case is fresh/new to a judge and they are doing their initial conflict checks. So it’s actually more normal for a judge to recuse quickly than for it to take a while.
Let me tell why I care about this case, and what the heck I’m doing in this group in the first place.
I’m an attorney, who is most often in the position of being the guardian ad litem of these poor babies that are taken from their parents. Sometimes, I find myself agreeing with DHR that the child should have been summarily removed, and sometimes, I vehemently disagree with DHR, and let the courts know that I think what is going on is shenanigans and that, in my opinion, the child should be returned to the parents.
And one of the things that I can tell you from being involved in hundreds of these cases over the years, is that when the public gets ahold of one of these stories, they very rarely even get ahold of even half of truth.
The problem is that nobody is allowed to correct the public perception.
The parents in these matters are able to wholly shape the public perception by themselves because the state agencies, the judges, the Guardian ad Litem, and the attorneys aren’t free to share whatever they want about a pending juvenile case with the public.
I could give 50 specific examples of times when parents either blatantly lied and/or innocently and completely misunderstood and thus mis-stated to their friends, family, and the public about the circumstances of why/how DHR was involved and why their children are in foster care, but I can’t tell the news lady, or you, or anyone else what the “truth” appears to be from the evidence and from my own independent investigation because I am forbidden to by law, by privilege, or by rules of ethics.
Having not been involved in this particular case at all myself, I obviously have no knowledge about what is going on in this case other than what the parents are sharing with the public and what the “rumors” are.
I really like the fact that the Holms themselves are involved in this page, and even this very thread, and it is helpful in trying to understand their impression of what exactly is going on here.
Unfortunately, it’s not hard for me to imagine a DHR scenario, which could be as simple as this: DHR could view the Holms as nomads with no particular plan for meeting the basic needs of the child (i.e. Shelter, access to regular medical care, etc).
That view could be based on statements made to various parties including, but not limited to: the park ranger, the hospital staff, DHR case workers, etc.
If what DHR effectively heard was
– “we are going to leave the hospital and continue
– to live as we have been, going from campsite to
– campsite, from park to park, living in tents and
– cooking our food by campfire”,
I can at least conceptually understand why that would give the Department some pause with respect to a newborn baby.
Despite what people may think, the State CAN put you in the position of essentially having to prove to the State that you are both willing and able to provide for the basic needs of your children.
That might mean sitting down and answering some tough questions.
You are free to refuse to answer the questions, but if you do, you should be prepared to be asked those questions by a judge (or guardian ad litem) at a shelter care hearing after DHR performs a summary removal because they are not able to determine if you are willing and able to care for your child to an objectively reasonable level.
They have to be able to ascertain that information.
If the judge orders the child to continue in DHR shelter care while the issue is ironed out, and you refuse to cooperate with the individualized service plan (ISP) scheme, at least to enough of an extent where DHR can even determine IF any services are actually needed or not, then again…DHR (and sometimes the GAL) report again to the court that they are unable to ascertain whether or not you are willing or able to care for the child at this time.
The State doesn’t err on the side of “absent any information at all, we will assume the parent can indeed properly care for the child” when a possible Child Neglect report has been made by a mandatory reporter.
In those situations, the state errs on the side of caution, that a child be properly cared for by the State, until such time as we are able to ascertain that he parents are indeed both willing and able to care for the child to an objectively reasonable standard.
I know you have been reading this conversation, as you replied to something I said earlier.
I want you to know that I am NOT calling you a liar, and I am NOT saying that you don’t know what is going on in your case.
I was merely illustrating that I have, in fact, seen both of those things happen in many cases in the past.
I also don’t have any knowledge that you are being in any way uncooperative with the Department in this matter, but if you are, perhaps because you want to fight them over the “principle of the matter”, know that doing so will likely continue to prolong this matter even longer than it has already been going on (in my personal experience and opinion).
I know you have attorneys and you have to follow their advice.
I hope and pray you are getting good advice.
Additional Comments From Matthew Simachak
From: Matthew Simechak
To: #freebabyholm FaceBook group
Date: January 6, 2017
Time: 1:45 PM MT
DHR has a way, but apparently the parents aren’t interested in doing it DHR’s way. I finally listened to that audio that was recorded at the DHR ISP.
I wish I would have listened to that before I typed the above.
Regardless of the parents’ opinions on whether or not the State had the power to remove their child (it did), or did so properly (this can be litigated), this matter could have been over by now if they were willing to let DHR and/or the GAL make a simple home visit to the shelter to assuage themselves that the child will have proper shelter.
When I typed my long post above, I assumed with no knowledge, that the parents were perhaps more interested in “proving a point” than getting their child back.
Now, having heard it directly from the father’s mouth in the recording, I know that my assumption was 100% correct.
I’m sad that I was right.
I wish I wasn’t.
My favorite part was at the end, when the father was talking to an unknown person, he told the person that they “missed a good show” (meaning the antics at the ISP), and then proceeded to laugh about how he declined accepting any services from DHR by saying to the DHR social worker.
– “Services? What, am I getting an oil change?”
That’s all I needed to hear.
Have fun on the crusade.
When they decide they actually want their child back though, they might want to take the GAL out to their proper shelter and show them that they are willing and able to care for their child (following the Reasonable and Prudent Standard established by the State of Alabama).
From: Matthew Simachak
To: #freebabyholm FaceBook group
Date: January 6, 2017
Time: 1:50 PM MT
If anyone wants to actually know what the actual laws of Alabama say about this stuff, instead of throwing around works like “kidnapping”, here are some snippets of the actual law, interspersed with some explanatory material by me.
Alabama Code Section 12-15-301
(2) ABUSE. Harm or the risk of harm to the emotional, physical health, or welfare of a child. Harm or the risk of harm to the emotional, physical health, or welfare of a child can occur through nonaccidental physical or mental injury, sexual abuse, or attempted sexual abuse or sexual exploitation or attempted sexual exploitation.
(8)NEGLECT. Negligent treatment or maltreatment of a child, including, but not limited to, the failure to provide adequate food, medical treatment, supervision, education, clothing, or shelter.
(11) REASONABLE AND PRUDENT PARENT STANDARD. The standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child, while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the state to participate in extracurricular, enrichment, cultural, and social activities.
Note: This doesn’t only mean that abuse/neglect has “already” occurred. Notice the language “harm or risk of harm”. It can also mean that it is imminently about to occur. If you telegraph your intentions to not provide adequate shelter for the child by saying you have no intention of doing so, it can meet the definition.
Alabama Code Section 12-15-306
Removing a child from the custody of a parent, legal guardian, or legal custodian.
(a) A child may be removed by a law enforcement officer from the custody of a parent, legal guardian, or legal custodian if there are reasonable grounds to believe any of the following:
The child is suffering from an illness or injury or is in imminent danger from the surroundings of the child and that the removal of the child is necessary for the protection of the health and safety of the child.
The child has no parent, legal guardian, legal custodian, or other suitable person able to provide supervision and care for the child.
(b) The person removing the child shall immediately deliver the child to the Department of Human Resources.
So all that is needed is a “reasonable grounds” to believe that any type of abuse and/or neglect has happened or that there is a imminent risk of it happening.
Then that triggers the 72 hour clause found here:
Alabama Code Section 12-15-308
Filing of petition and conduct of 72-hour hearing as to necessity for continuation of shelter care of a child.
(a) When a child alleged to be dependent has been removed from the custody of the parent, legal guardian, or legal custodian and has not been returned to same, a hearing shall be held within 72 hours from the time of removal, Saturdays, Sundays, and holidays included, to determine whether continued shelter care is required.
(c) At the commencement of the 72-hour hearing requirement, the juvenile court shall advise the parent, legal guardian, or legal custodian of the right to counsel and shall appoint counsel if the juvenile court determines he or she is indigent. If the juvenile court already has not done so, it shall appoint a guardian ad litem for a child who is a party to the proceeding. It is the responsibility of the guardian ad litem to present evidence supporting the best interests of the child. The parent, legal guardian, or legal custodian shall also be informed of the contents of the petition and, except as provided herein, shall be given an opportunity to admit or deny the allegations of the petition.
(d) All relevant and material evidence helpful in determining the need for shelter care may be admitted by the juvenile court, even though not admissible in subsequent hearings.
(f) If the child is not released, the juvenile court, at the earliest opportunity in the case, including the 72-hour hearing requirement or the adjudicatory hearing, may order the parent, legal guardian, or legal custodian to provide a list of names and, if possible, addresses and telephone numbers, of known paternal and maternal relatives to the juvenile court.
There, the court hears that “reasonable grounds”, decided if it agrees, and if it does and finds it necessary to do so, will continue the child in shelter care. There’s nothing illegal about this process (it is literally in the statutory law), and it’s not a “kidnapping”. It’s literally the process that Alabama has inserted into the statutory law.
Alabama Code Section 12-15-309
Alleged dependent child to be released when continued shelter care not required; conditions imposed upon release; amendment of conditions or return of child to custody upon failure to conform to conditions imposed.
(a) When the juvenile court finds that continued shelter care is not required for a child, the juvenile court shall order the return of the child, and in so doing, may impose one or more of the following conditions singly or in combination:
(1) Return the child to the custody of the parent, legal guardian, or legal custodian and, if necessary, place the child under the supervision of the Department of Human Resources.
(2) Place restrictions on travel, associations, or living conditions of the child pending the adjudicatory hearing.
(b) An order releasing a child on any conditions specified may at any time be amended to impose additional or different conditions.
Guess what it means for the court to “find” something?
The court has to be able to determine that the child no longer need shelter care. The court has to be provided with evidence that the child no longer needs shelter care (which would include the address of the shelter, pictures of the shelter, a home visit or home study of the shelter).
The easiest way to do that is to prove to DHR and the GAL that the child no longer needs shelter care, by complying with an ISP plan (which includes those dreaded “services”), and then allowing DHR to withdraw the petition themselves, or by giving the GAL a reason to advocate that the child should be returned to the parents even if DHR disagrees that the parents are ready.
No, a parent is not “required by law” to accept the services that DHR offers.
But which do you suppose is easier:
(1) having DHR convince themselves you are cool to parent your child by jumping through a couple of hoops that they offer you, and then them voluntarily asking the court to return the child,
(2) to get a hearing in front of the court and prove that you privately completed better reunification steps than DHR offered, and that the court should disregard the opinion of DHR, and the parents refusal to cooperate with DHR, and return the child anyway?
Hopefully I don’t have to answer that rhetorical question.
I hope the above helps people understand what is going on here, how the law works, why this is not a “kidnapping”, and that once the court places a child in shelter care, there is an entire process that has to occur, where things have to be proven to the court in order for parents to get their children back.
Non-compliance with the process results in delays in the process.
That’s reality, whether anyone likes it or not.
Whether or not someone has to participate in the process isn’t determine by the parents’ opinion of the status of the law.
It’s determined by the judge finding legitimacy in the allegations.
The law is what it is.
Clickable link to thread reference below: