Category Archive: Case Thoughts

GRANDPARENT VISITATION

Grandparent visitation according to California law

In a recent case of Stuard v. Stuard, a California Court of Appeal granted a petition by a child’s grandparents for visitation over the objections of the divorced parents of the child who both objected to their visitation. The court found the parents had encouraged extensive daily grandparent-grandchild contact. The grandparents were not required to prove parental unfitness. The court found the grandparents had been an integral part of their granddaughter’s life from birth until several years later when the father, who then had custody, began blocking visitation. The parents had permitted and encouraged the grandparents participation in their granddaughter’s daily life, school activities, and social events. A court-ordered evaluator found it would be in the best interests of the granddaughter to permit the grandparents visitation. The court found that “the continuance of a preexisting relationship with grandparents can provide a stable and dependable nurturing the grandchild can continue to count on in the midst of a rift in the parental relationship.”

Grandparents have a statutory right to request visitation with their grandchildren. In
California, three statutes apply:

1. Family Code section 3102 provides visitation by a deceased parent’s children, siblings, parents, and grandparents if such visitation would be in the best interests of the child;

2. Family Code section 3103 permits a court in specified proceedings involving the custody of a child to grant grandparent visitation; and

3. Family Code section 3104 permits grandparents to petition for visitation if the grandchild’s parents are not married or if certain other conditions are met.

In the above reported case, the Court of Appeal considered Family Code section 3104. Even though there is a presumption not to allow visitation if the parents of the child object to grandparent visitation, it is not absolute and the Court can order visitation especially when the parents had fostered and encouraged the close bond between the grandparents and the grandchild and it was in the best interests of the grandchild to permit visitation.

How much visitation did the court grant the grandparents? The court awarded the grandparents a weekday overnight visit once a week and one overnight weekend visit per month. They can take their granddaughter on a 7-day vacation each summer and can have an overnight visit with her around Thanksgiving and Christmas. Further, the parents cannot interfere with the grandparents attending their granddaughter’s school, social or athletic activities. The parents must keep the grandparents informed of those activities. The court also awarded $3,000.00 toward attorney fees in sanctions under section 271, and $2,000.00 in counseling expenses under section 3104, all jointly and severally payable by the parents.

A BROKEN HOME CAN BE A HAPPY HOME

A broken home can be a happy home. Encouragement for divorced families from JuvenileLawCenter.com

Teenage boys frequently act out in anger when their father is absent from the home and has little contact with them. The boy feels abandoned and angry at his father for leaving him and not having regular loving contact. Their anger makes them want to hurt others. They don’t care that they are also hurting themselves by doing poorly at home, in the community, and at school. The boys seem to snap out of it when they get arrested for criminal behavior and are suddenly faced with going into custody. Teenage girls seem to handle their father’s absence a lot better.

As reported in a BBC App blog in June 2015, 9-year-old Azka Corbuzier from Indonesia posted a video on YouTube about his broken home. The video has been viewed more than 350,000 times. His video is not a sad video. Using stick figures and words he says, “It’s not a broken home when you still have the same love from your parents.” His divorced parents get along. He stayed living in the same home with his father. His mother lives nearby and visits him everyday. Azka expresses love for both of them. He is not angry at either of them. He understands they cannot live together because they fight. They are now both happy. He is happy because he has regular love and attention from both of them. This is a video well worth viewing by all parents.

Denying or unduly restricting your kids contact with their biological father is not in their best interests unless there is truly a protective issue with the father. If the father is an illegal drug user, criminal, gang member, emotionally or physically abusive then the mother must protect her children. Otherwise, promote regular love and attention from the absent parent.

VACCINATION BILL, SB 277, GOES INTO EFFECT JANUARY 2016, IN CALIFORNIA

Vaccination Bill California SB 277

SB 277 was passed by the California Legislature and signed into law by Governor Jerry Brown The law amends sections 120325, 120335, and 120375 of the California Health and Safety Code. It adds section 120338 to the same code. The law is effective January 1, 2016. The law mandates children attending private or public elementary or secondary schools, child care centers, day nursery, nursery school, family day care home, and development center schools to show proof of full immunization for 1. Diphtheria, 2. Haemophilus infuenza type b, 3. Measles, 4. Mumps, 5. Pertussis (whooping cough), 6. Poliomyelitis, 7. Rubella, 8. Tetanus, 9. Hepatitis B, 10. Varicella (chickenpox), and 11. Any other disease deemed appropriate by the department taking into consideration recommendations of the Advisory Committee on the Immunization Practices of the United States Department of Health and Human Services, the American Academy of Pediatrics, and the American Academy of Family Physicians.

The bill does not apply to those families home schooling their children and those students enrolled in an independent study program that do not receive classroom-based instruction. It also does not apply to students who may be home schooled and need to access resources per their IEPs (Individual Education Plans) at private or public schools. It does not apply to students whose parents file with the governing authority of the school written statements by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probably duration of the medical condition or circumstances, including but not limited to, family medical history, for which the physician does not recommend immunization.” (H. & S. 120370)

Pupils who, prior to January 1, 2016, submitted a letter or affidavit on file at a private or elementary secondary school, child day care center, day nursery, nursery school, family day care home, or development center stating beliefs opposed to immunizations shall be allowed enrollment to any of those locations within the state until the pupil enrolls in the next grade span.

What does grade “span” mean? Grade span is defined as (A): Birth to preschool; (B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten; (C) Grades 7 to 12; inclusive. (H. & S. 120335 (g) (2) ) This means if you filed a letter or affidavit prior to January 1, 2016, stating beliefs opposed to immunization and your child is a kindergarten student, they will be permitted to continue to go to that school and not be immunized until the next grade span which would be grade 7. If your child is in the 7th grade and you filed such a letter, they can continue and finish high school without being immunized. Further, the bills do not prohibit students who have IEPs from accessing any special education and related services required by his or her individualized education program.

If you have not submitted a letter or affidavit prior to January 1, 2016, with the governing body of the school your child is attending, your child will not be admitted to any of the institutions specified in SB 277 for the first time, or admit or advance any pupil who has not been immunized for his or her age as required by these laws.

If there is good cause to believe that a child has been exposed to a disease listed above and his or her documentary proof of immunization status does not show proof of immunization against that disease, that child may be temporarily excluded from the school or institution until the local health officer is satisfied the child is no longer at risk of developing or transmitting the disease.

Opponents of the bill have vowed legal attacks on the bill. I’m sure many questions will arise as families proceed with compliance. If you are submitting a letter or affidavit stating beliefs opposed to immunization for your child/children, we suggest you get it stamped with the date of filing so there is clarity it was filed prior to January 1, 2016.

A DAUGHTER IS SEXUALLY ASSAULTED: THE NIGHTMARE BEGINS PART 4

 

JLC Part 4 Molested

This is part 4 in one the story of one family’s sexual molestation nightmare story. If you haven’t already done so please read part 1, part 2, and part 3.

The investigator was able to get a name for the man who had sexually assaulted other girls in the same Navy housing complex. The neighbors told the investigator this man was prosecuted. When the investigator searched the court records in the same county where these sexual assaults took place, he was unable to come up with a court reference for this man. Through his continued investigation and cross-referencing names, he was able to locate a filing for a man with a same similar sounding name but not the same spelling. This man’s name and the details of the offenses against other young girls in the same Navy housing complex he was convicted of committing had been withheld from the defense. The defense team believed there was a high probability this man was the man responsible for the abduction of the family’s daughter and her sexual assault.

The police reported their crime lab analyzed the clothes, bodily fluids, and other physical evidence taken from the daughter and the crime scene. They did not find any evidence of semen or any other evidence to forensically identify the attacker of the daughter. The defense hired a respected criminalist, a person with extensive experience analyzing bodily fluids and crime evidence, to consult and assist on the defense team. The prosecutor on the case had the local police crime lab re-examine the evidence they had previously examined in 1989. Upon their re-examination with equipment purchased since their initial exam, they found a semen stain on the front of the nightgown worn by the victim and on her underwear. Their testing of the stain by the police department revealed no usable sperm heads. The defense sought their own examination of the evidence collected by the police department with a nationally respected forensic criminalist with experience in DNA testing. It was agreed by the prosecution and defense team to submit the semen stain to a nationally recognized testing lab to do DNA analysis. DNA was collected from the father and the man who had sexually assaulted other girls in the same Navy housing complex. This is the same man who abducted another girl from the window of another Navy housing complex and sexually assaulted her in a phone booth.

While the criminal trial was on hold pending results from the testing, Child Protective Services and their attorney were pushing ahead to terminate the parental rights of the parents and free their daughter for adoption in the Juvenile Court. The first DNA results were received on September 17, 1991. Sperm was found on the semen stain. The second step of the DNA testing was to determine if the sperm was from the father. On October 9, 1991, the results showed the father was not the donor of the sperm on his daughter’s nightgown or underwear.

The defense team immediately filed pleadings to halt and stay the proceedings to terminate the parents’ parental rights pending further DNA testing to determine if the man who had sexually assaulted other girls in the parents’ Navy housing complex was responsible for the attacks. This met with stiff opposition from the Child Protection Services and their attorney. The Court would not stay the proceedings to free the daughter for adoption. On November 14, 1991, two years and six months after the brutal sexual assault of their daughter, DNA testing identified the man who was prosecuted for sexually assaulting other young girls in the same Navy housing complex and who took another young girl out of a window from her home to sexually assault her.

By this time, the local newspaper had been contacted about the case by the Senator from the parents’ home state. The case started to be reported in the local newspaper. The County Grand Jury added the case to their investigation into the other cases where innocent people were wrongly accused of sexual assaults. The weight of the public scrutiny caused Child Protective Services to change their position and not object to ceasing their efforts to terminate the parental rights of the girl’s parents. A psychologist was selected to work with the girl in therapy to reunite her with her parents. She was successfully reunited with her parents. The criminal charges were dismissed with a Finding of Factual Innocence of the father. The fact of the arrest and charges were erased from his record. The Attorney General filed an administrative action against the therapist’s license who was responsible for the alleged brainwashing. Subsequent civil suits were filed with successful resolutions against some of the parties for their negligent conduct. Others equally responsible escaped suit because of immunities granted by the State Legislature.

The family can never recover from their nightmare. This terrible ordeal took its toll on their entire family–not just the daughter and her parents but her sibling and extended family as well.

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UNSECURED WINDOWS ARE HAZARDOUS TO CHILDREN

Unsecured windows are hazardous to children. Learn the dangers and consequences of open windows.

An expert in a recently published court case related 18 children ages 10 and under die annually from falls from windows. This statistic does not encompass how many children are seriously injured from falls from windows every year. The United States Consumer Product Safety Commission asked the American Society for Testing (ASTM) and Materials to develop standards for devices that would protect children from falling from windows. In the expert’s words, the devices covered by the standards fall into one of three groups: 1. Fall prevention window guards, which consist of closely spaced bars in the device designed to fit into or onto the window frame and keep children from falling through it; 2. Window fall prevention screens, which are attached mesh material that fits into or onto a window, which must possess sufficient strength to prevent a child from falling through an open window and are totally different in design, look and function from standard insect screens; and 3. Window opening control devices, which limits windows to open to 4 inches or less and unless a release mechanism (one that resets) is deliberately undone.

In the published case, a 5-year-old boy, his two brothers and his parents were vacationing at a beach and tennis club in San Diego, CA. The mother had requested a room on the first floor. When they arrived they were told there were no rooms available on the first floor but they had one on the second floor. The boy’s mother opened a window to hear the ocean. There was a screen on the window. The three boys were playing and coloring in their books. The parents were at kitchen table. The father was looking at his computer and the mother was planning the days activities. The boy put his foot on the window sill which was 25 inches from the floor. He leaned over to see something and the window screen popped out. He fell out of the window and suffered major injuries. Safety bars were on two of the windows of the hotel room and on the windows of other ocean facing rooms but not on the window the boy fell out of.

There are many other cases of children being injured or killed by falling from unsecured windows. A young boy fell out of a second story window in his apartment. The window was approximately 44 inches above the floor level, but the minor’s mother had placed a bed under the window. The landlord had installed protective bars on some windows with sills 18 inches above the floor. A 7-year-old boy fell out of an open fourth floor hallway window of the hotel where he was residing. The boy was playing on the top mattress when he accidentally tumbled backwards towards the open window, the screen gave way, and the boy and the screen fell onto a patio. A 3-year-old fell out of a second-story apartment window, which his mother had left open because a central air-conditioning unit that normally cooled the apartment had been inoperative for several days. The window had a screen. The window sill was only inches off the floor. The young boy pressed against the aluminum-framed screen and fell when the screens fasteners gave way. A 3-year-old girl was killed when she and her mother were guests at a fourth floor hotel room. The mother had left the child playing in the bedroom while she went into the bathroom to wet a cloth to use on the child’s younger sister. When the mother returned she saw the child standing on the window sill with her back to the window screen. The mother rushed to rescue the child, but before she could reach her, the child leaned against the screen, the screen broke and the child fell out of the window.

All of the above cases ended in lawsuits. Courts have held a greater degree of care is generally owed to children because of their lack of capacity to appreciate risks and avoid danger.

Terrible accidents can occur when young children have access to unsecured windows. Make sure the windows in your hotel room are safe and secure in the event your young child may climb on the window sill or lean against the window or screen. If you rent an apartment or own a home, you have a duty to make sure your windows and areas where a child may fall from are securely protected.

A DAUGHTER IS SEXUALLY ASSAULTED: THE NIGHTMARE BEGINS Part 2.

Part 2 in a series recounting a family's nightmare when their daughter was sexually molested.

The young girl was admitted to the hospital on May 9, 1989. A hold was placed on her by Child Protective Services. When first questioned by a male detective and a male CPS worker when she first arrived at the hospital, the girl related she did not remember anything unusual happening the night before between going to bed and waking up. She was asked if her father or anyone else had sexually touched her and she denied he or anyone else had. She was described as being bright, cheerful, friendly and unafraid. When asked by the examining physician what happened, she said that something had happened but she could not remember what. When told she may not be able to go home, she related in detail about the man coming in her brother’s bedroom window, taking her out of the window to a car, sexually assaulting her and then returning her to her bed. She further disclosed how she had woke up and went into her younger brother’s room to sleep. Her brother was in his bed when she got in.

The police went to the family home. They took fingerprints from the window the girl claimed the man had entered and carried her out. A footprint was taken from underneath the window. Upon further examination, the police forensic examiner determined the shoe print was only a partial print and the fingerprint appeared smeared. The partial fingerprint could have been that of a child. The clothing the girl was wearing was taken into evidence by the police for further forensic examination. The police requested the father take a polygraph examination. He willing did so on May 10, 1989. The police polygraph examiner determined the results of the test were inconclusive.

The young girl was detained in a foster home. The authorities and child abuse experts at the local child abuse center suspected the girl was molested by her father and was protecting him. The mother was permitted supervised visitation with her daughter. The father was not permitted any visitation. The girl was put into therapy with a licensed therapist selected by Child Protective Services. The sessions started in May 1989. The therapy sessions were often twice a week. The girl reportedly told the therapist she was sad at not being able to see her dad. She liked the visits with her mother and brother. She was sad not being home. She told the therapist how the perpetrator had told her to be quiet or he would kill her. She cried but no one heard her. The man did not tell her to keep it a secret and just to be quiet. The girl related how she repeatedly told the therapist it was not her father who hurt her but a man who came in her brother’s window. He put his hand in the window and stroked her cheek. He then took her out of the window. The therapist, believing the young girl was protecting her father, used therapeutic techniques to promote disclosure when molest in the home is suspected. Children are told it is hard to talk about the assault if it was someone you love did it. Stories are read to the kids such as it is “Ok to Tell Secret,” “I Told My Secret,” “No More Secrets for Me,” “Promise Not to Tell.” Stories are read about a “Baby’s Search for a Good father.” The child is told about it being okay to tell if it was your dad. He could get help and you could go home sooner.

By November 1989, the young girl was already in a third foster home. This third foster family wanted to adopt her. The foster parents reported the young girl was having nightmares after the supervised visits with her mother. Visits with her mother were cancelled. By January 1990, it was reported by the foster family the young girl had acknowledged for the first time “maybe” it was her dad who molested her but she was still confused about what happened to her. The therapy sessions continued with added emphasis to promote disclosure that her dad did molest her. In June 1990 the authorities permitted a supervised visit with her younger brother. She was still denied any visits with her mother. Shortly after the visit with her younger brother, the foster mother disclosed to the therapist the young girl told her it was her father who had molested her and he told her to make up the story about a man taking her out of the window. He told her not to tell he had done it. She did not tell because she thought she and her father would get in trouble. The young girl was re-interviewed by child abuse personnel and the police to authenticate her recent disclosure. The authorities proceeded to move to terminate the parental rights of the parents and move to permit the adoption of the young girl by her foster family.

On December 13, 1990, the father was arrested, put in jail, and charged with felony offenses for the sexual assault of his daughter.

To be continued

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MEDICAL CHILD ABUSE BY PARENTS

medical dr

A recent case in Massachusetts has generated a lot of publicity in the news.  A 15-year-old girl was recently ordered into a foster home by the Juvenile Court.  In an article in The Courant, William Weir described the circumstances. The young lady was reportedly initially diagnosed with mitochondrial disease by doctors at Tufts Medical Center in 2011.  She was admitted to Boston Children’s Hospital in 2013.  The doctors at Boston Children’s disagreed with the Tufts doctors and believed the girls ailments were due to psychological factors.  They believed the child was being subjected to medical abuse by her parents.  The parents, allegedly,  believe their child’s ailments are due to her diagnosis at Tufts and she needs medical treatment.  The Juvenile Court in Massachusetts  recently ordered the girl put into a foster home.

A Juvenile Court Judge Heard The Evidence And Made A Decision.  The Parents Must Follow The Orders Of The Court Until Told Otherwise By The Court If They Want T0 Regain Custody Of Their Child/Children

Parents and their children have court-appointed attorneys in Juvenile Court.  The parents can hire a private attorney if they can afford to do so.  The parents and the attorneys have the right to have a trial, present evidence, put forth experts, and cross-examine the experts on the either side.  In order to remove a child from the parents’ custody, the court must be convinced to the legal standard required of the court to remove a child from their parents’ custody in their jurisdiction.  In California it is by clear and convincing evidence.  If the parents’ or the girl’s attorney don’t agree with the court’s ruling, they can file a writ or an appeal and take the appropriate legal steps to contest the court’s ruling.  Unless reversed by a higher court, the trial judge’s rulings must be followed.  Don’t wait to engage in reunification services until a higher court has ruled.  It is imperative you initially accept the court’s ruling and start services as soon as possible.

When you take on child abuse experts/treating doctors from your local Children’s Hospital, in this case Boston Children’s Hospital, you had better have some very impressive experts if you have any hope of getting the court to agree with your position.  The courts are used to having the child abuse doctors from their local Children’s Hospital testify before them. They have come to rely on them.  This does not mean the doctors cannot be wrong, but an impressive expert must convince the court they are in error.

What Can Parents Do?

1.   You must follow the court’s rulings until they are reversed by a higher court.  When the court takes custody of a child from a parent, the Court, in most cases, is required to order reunification services.  You will have been presented with a reunification plan from Child Protective Services (CPS) and the court agrees are the type of services they want the parents to engage in and successfully complete before returning their child.  If you refuse to do what the court has ordered for services and/or refuse to work with your local CPS workers, you will likely have your reunification services terminated and will lose your child to adoption or to guardianship with a relative or friend.

We commiserate with the parents but sometimes the courts will rule against you.  That is the job of a judge to listen to the evidence and make orders.   In such a situation, we tell the clients we had our shot with the Court.  It is now imperative you start doing what the Court has ordered.  You must start services right away to show the Court, CPS, and the minor’s attorney that the return of your child to your custody is paramount with you.

2.   It is no good engaging in services and telling your therapist, parenting instructor, psychologist, psychiatrist, or whomever CPS or the Court has required you to see, that CPS, the court, and all associated with the system are child stealers, they are all wrong, and use any other expletives you can think of.  Those type comments will be reported back to CPS.   CPS will put those comments in a court report to the judge.  You will have wasted your time doing your services if you do not do them with the right frame of mind. There is nothing worse than to have a parent complete a program and receive their completion certificate only to have the social worker report they talked to the service provider and the parent said they were only doing the services because the court ordered them to do so and they did not think they were at fault or needed them.

3.   Parents must understand that there are limited time periods for parents to engage in services and complete their reunification plans before the court is mandated to terminate services and to terminate parental rights.  Know what those time periods are in your jurisdiction.  It is not wise to delay services while you continue to fume about how the court ruled.  It is imperative you do not violate any of the conditions of visitation with your child.  CPS has got to get a feeling you are co-operating with them and they can trust you around your child.

4.   At times in alleged medical abuse cases we see the term Munchausen by Proxy raised.  This refers to situations where one or both of the parents is accused of fostering fabricated or induced illness in their children.  I have no idea if that is being raised in the case of the 15-year-old girl in Massachusetts.  What parents must realize in these types of cases is if one of the parents is considered the medical abuser, the other parent must be told and counseled that if they separate from the abusing parent they will have a much better chance of getting their child returned to them.   Certainly if CPS believes one of the parents is an abuser and/or will not engage in or benefit from services, then CPS will do all they can to prevent the child being returned to the family while the child is still a minor.  The court in such a situation will not want to return a child to a home where there is a parent who is considered at risk and did not engage in or benefit from services.

We have had a lot of success in these type cases of getting the child returned to the non-alleged abusing parent.  Once that takes place it is much easier to convince the other parent to do their services so they can eventually reunify.  It is a tragedy for all to see kids taken from their parents because one or both of their parents have stubbornly refused to follow the court’s orders or one parent has remained with the allegedly abusing parent.   Staying with the allegedly abusing parent cancels any chance the non-abusing parent would have of getting their kid(s)  back with them.

FATHER FACES PRISON SENTENCE FOR NEGLIGENT STORAGE OF HIS FIREARM

prison

A 56-year-old father in San Diego, CA, is awaiting sentencing and is facing a possible seven year prison sentence after having pled guilty to two counts of felony child endangerment under circumstances likely to cause death or great bodily injury. A previously posted blog explains the facts of the case and the charges the father was facing.

Time and time again we regularly see stories in the news of minors getting possession of guns from their homes and committing senseless killings and/or injuring others. See my prior blogs “Who Should be Held Responsible for a 5-year old boy killing his 2 Year-Old Sister with his .22 Caliber Rifle”, “Ten Year Old Takes Semiautomatic to School”, “When Will Gun Owners Learn to Lock Up Their Guns.” and “Guns–One of the Leading Causes of Death of Children Under 18 in the United States, Part I and Part 2.” I have no reason to believe the parents of these minors knew or expected their sons or daughters would shoot someone or cause harm to others. The reality is that minors have an attraction to guns. If they get their hands on a gun they are going to want to point it, pull the trigger, and, in some cases, do harm to others or use them in self defense. It is not a defense that you had no idea your son or daughter would do such a thing and/or that they were trained in gun safety and knew better. Kids will be kids. Guns are an attractive nuisance. Given the right circumstances they, like adults, are capable of committing terrible crimes. You as a parent are required by law to safely secure any weapons you own or have in your possession and not permit your minor access to them.

Having your weapon under your pillow or in the night stand next to you is not safely securing your weapon. It is not a defense that you are in law enforcement. You should know better. In one of our blogs we talked about a three-year-old who got his hands on his police officer father’s service revolver and pulled the trigger. The bullet struck the father and rendered him a paraplegic.

BOTH PARENTS HAVE A DUTY TO PROTECT AND ENSURE THEIR WEAPONS ARE SECURELY STORED AND MINORS CANNOT ACCESS THEM WITHOUT PARENTAL SUPERVISION

The duty to make sure you are not endangering your child or another child falls upon both parents. It is not a defense that your husband or wife owns the gun/s and is responsible for safely storing them. It is not a defense that you or your husband or wife grew up with guns, took your kids to gun safety classes, and never dreamed they would hurt someone with a gun.

The charges the father in San Diego pled guilty to is a predictor of more similar prosecutions to come. The senseless gun violence will continue with regularity as long as parents don’t keep these dangerous weapons securely locked up and not allow minors access to the guns without parental supervision. Discuss gun safety with your minors. You may be responsible with your guns, but your minors friends and families may not be.

 

CIVIL LIABILITY FOR NEGLIGENT STORAGE OF FIREARMS

shotgun

Michael C., age 16, left his home in California shortly after 8:00 p.m. He took the family car, some credit cards, and his father’s Swedish Mauser military rifle equipped with a telescopic sight. About 6:00 the next morning he stationed himself on an overpass and started to fire at the passing vehicles. He shot and killed three people and wounded others. Michael then put the rifle to his head and killed himself.

Michael’s parents and Michael’s estate were sued for damages. It was alleged that Michael’s parents were negligent in making firearms available to Michael. It was further alleged they were negligent in their training, supervision and control of Michael. For the purposes of this blog, we will address the allegation of negligent storage of firearms.

Negligent Storage Of The Rifle In A Locked Cabinet

Michael’s father kept his rifle and its supply of ammunition in the family garage in a locked cabinet. Michael knew where the two keys to the cabinet were located. He used one of the keys to obtain the rifle.

A published California Appellate Court opinion addressed the legal issues presented by the above facts. The court permitted the case to go forward to a jury on the issue of Negligent Storage of the Rifle. The court set forth the following general principles in its decision: 1. “A…rifle is a lethal weapon whose sole function is to kill human beings and animals of comparable size. A person dealing with a weapon of this kind is held to the highest standard of care;” 2. “A majority of other jurisdictions have considered it actionable negligence for a person to leave a firearm in a place where he should foresee it might fall into the hands of a child.”

Absolute Liability For Permitting A Minor To Have A Firearm Or
Leaving A Firearm In A Place Accessible To The Child

In addition to the parents being sued for negligent safeguard of a firearm, the parents are subject to an additional basis for liability. California Civil Code section 1714.3 adopted by the California legislature in 1970 makes a parent liable in an amount up to $30,000.00 for injury or death to one person proximately caused by the discharge of a firearm by his child if the parent permitted the child to have the firearm or left it in a place accessible to the child. The amount can be $60,000.00 if more than one person was killed or injured. This is described as absolute liability and negligence does not have to be proved.

Grandfather Liable For Leaving Loaded Gun In An Unlocked Dresser Drawer

The opinion also referenced a case in Pennsylvania where a grandfather was held liable for injuries inflicted by his grandchild with a loaded gun which the child found in the grandfather’s bedroom in an unlocked dresser drawer. The court in Pennsylvania found the grandfather has a duty to exercise extraordinary care to see no harm would be visited upon others as a consequence of his conduct.

 

ENTICING SOMEONE UNDER THE AGE OF 18 TO ENGAGE IN SEXUAL ACTIVITY CAN RESULT IN A MANDATORY TEN-YEAR SENTENCE

lost

The Ninth Circuit Federal Appeals court just upheld the mandatory minimum sentence of a 45-year-old man for the attempted enticement of a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” He was convicted of one court of 18 U.S.C. section 2422(b). Congress enacted the Telecommunications Act of 1996 to specifically prohibit the enticement “using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdictions of the United States knowing persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.” Since the enactment of the Act, the United States Congress has increased the penalties for this offense three times. The last time was in July 27, 2006, to “life in prison and increasing the mandatory minimum to ten years.”

This man’s offense took place in Oregon. Under Oregon state law his conduct would be a misdemeanor offense. How can he also be charged under federal law? If one commits a state offense which also could be a federal offense, one could be prosecuted in either jurisdiction (Federal or State) or both. More and more possession of child pornography charges are being prosecuted in the Federal courts because the judges in the Federal courts, following Federal Sentencing Guidelines, are imposing lengthy prison sentences for these offenses. It is not that the State courts don’t take these offenses seriously, but most of these type offenders are first time offenders with jobs and families, and are very likely to do very well on probation and not repeat the same offense again. Offender specific therapy is very successful and, for the safety of the community, they don’t need to be placed in prison for years at taxpayer expense. Congress wants to impose lengthy prison sentences, despite the background of the defendant, for these type offenses.

What did this man do? He approached a 16-year-old girl he had seen at his kid’s school in a store. He told her he thought she “looked nice.” He sent her a “friend” request on Facebook. The girl wisely told her father. Her father reported this to the local police. The FBI got involved and had one of their agents pose as the girl on Facebook. An instant message account was established on a Yahoo! email account. The defendant sent messages enticing the girl to have sex with him. Eventually a meeting was set up where the defendant arranged to meet the girl at a train station. The defendant went to the train station to meet her and was arrested. The girl did not go to the train station. When arrested he had alcohol and condoms on his person. He was charged with one count of online enticement of a female minor. The defendant had been reported before to the local police for sending sexually explicit messages to another 16-year-old girl and to an 18- year-old girl, but he was not prosecuted for those incidents.

The defendant can be any age. He or she could be a juvenile or over the age of 18. How many juveniles are using the internet, instant messaging, texting, using Facebook and other social media sites to entice and solicit sexual activity? People say things by text, on Facebook, in email and on social media sites they would never say in person. If your minor under the age of 18 was Federally charged for this offense, they would be tried under the Federal Juvenile rules and laws. They probably would not be facing a ten-year mandatory prison sentence but could face severe custodial and other sanctions. If they are 18 or over, they are facing the same penalties as this defendant.

WHAT CAN PARENTS DO?

1. Talk to your minors. Talk to your spouse or significant other and discuss cases like this. The defendant in the above case has a family. He is now facing a minimum sentence of ten years in a Federal penitentiary.

2. Supervise your minors texting, their Facebook page, Instant Messaging and other social media sites. Put parental controls in place to block sexual material. Please review our prior blogs on these subjects.

3. Do not permit your minors to restrict you from having access to the above. If they will not permit you to regularly review and supervise what they are texting, sending and posting, don’t allow it or pay for it.