May 22, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
Two days ago I discussed the rights of parents under the Constitution as decided by the U.S. Supreme Court. Yesterday I pointed out the many obstacles parents have to clear in order to assert those rights and how parents often don’t have the resources to do so. The fear of retaliation against them by CPS agencies for asserting their rights often forces parents to make the best deal they can with an agency that has far more time and money than they do.
Today is Part 3 of the trilogy in which I detail one case in which a father, Eric Foy, attempted to force his local child protective agency to abide by constitutional law. It did not end well for Foy; indeed, it hasn’t ended yet.
Now, Foy lives in Connecticut and, among other state entities, the family courts there are being investigated by federal agencies on charges of public corruption. Interestingly, Foy’s judge, Stephen Frazzini, has been highlighted by various family court reform organizations for what they consider his cronyism and willingness to ignore the law. So part of Foy’s case involves the heavy-handedness of the state Department of Children and Families, inextricably bound up in which are Frazzini’s dubious rulings. Some might argue that the one tends to beget the other.
In February of 2014, Eric Foy filed for divorce from his wife Lisa. They have two children, so the divorce involved a child custody aspect. Soon, both Foys had leveled charges of domestic violence and child abuse at each other. All charges were investigated and found to be without merit. But that didn’t stop the DCF from taking the children into foster care. This article explains (Connecticut Law Tribune, 4/27/15).
The Department of Children and Families had obtained an order of temporary custody even though there was no conclusive evidence that either parent had abused the youngsters, according to court documents. Now, more than a year later, the children remain in foster care.
How is it that children who’ve not been harmed by their parents (who are both attorneys), are still in foster care more than a year after the original divorce filing? It seems Eric made a mistake; he attempted to assert his constitutional rights against DCF. He did so via a petition for a writ of habeas corpus demanding the release of his children from the custody of DCF.
In it, Eric J. Foy and his attorney accused the DCF of several constitutional violations and sought to have the Foy children produced in court for a hearing on the agency’s conduct. In the months following, the case attracted national attention — and nearly ended up before the state Supreme Court — when a judge issued an injunction restraining the Law Tribune from publishing an article based on the petition…
Eric Foy called filing a habeas in his case a "Hail Mary," but he said it was a desperation tactic worth trying. "These children have been wrenched from their home," he said. "People are afraid of the DCF. It’s the 800-pound gorilla, the $800-million gorilla."
Foy’s case came before Judge Frazzini, who took the unusual and clearly illegal step of issuing a gag order prohibiting the Connecticut Law Tribune from publishing anything about the case. This article describes Frazzini in unflattering terms (Communities Digital News, 2/5/15). The case it refers to is the Foy case.
During a recent hearing before the Connecticut State Legislature’s Judicial Committee, State Representative Minnie Gonzalez (D-Hartford) and 17 other State legislators cited dishonesty and corruption as a reason why they opposed Judge Stephen Frazzini’s reappointment to the State Court bench.
On January 23, Rep. Gonzalez questioned Judge Frazzini about his membership in the state chapter of the Association of Family and Conciliation Court. The controversial trade association and vendor to the judicial branch was founded by Connecticut family court administrators, judges, and the professionals who appear before them in court.
Specifically, Rep. Gonzalez asked Frazzini whether he should have recused himself from hearing a controversial case during which he issued a gag order against the Connecticut Law Tribune. He did this at the request of the mother’s attorney, AFCC member Stephen Dembo, and at the recommendation of CT AFCC founding board member Susan Cousineau, the guardian ad litem assigned to the case.
Days later, Frazzini issued an order sua esponte, effectively reversing his own decision after the Connecticut Supreme Court agreed to hear the Tribune’s appeal as to whether the ban was a violation of the publication’s First Amendment rights.
In response to Gonzalez’s question, Frazzini testified that he was not a member of the CT AFCC, that he has never attended a meeting, that he doesn’t know the chapter’s membership, and that he did not even know whether a local chapter had “gotten off the ground.”
Yet according to documentation filed with the Secretary of State’s Office in 2013, founding board members of the CT AFCC include some of Frazzini’s close colleagues, including former Chief Family Court Administrative Judges Lynda Munro and Judge Gerard Adelman, and Frazzini’s coworkers Judge Holly Abery-Wetstone, Court Support Services Division (CSSD) Regional Managers Debra Kulak and Phyllis Cummings-Texeira, and Court Operations Manager Marilou Giovannucci.
Less than a week later, Frazzini issued a letter to the legislature recanting this testimony and admitting that he had made a payment to his co-worker’s corporation in 2012, but since then has paid dues only to the national AFCC organization.
Frazzini looks very much like a judge who carries the water for DCF and possibly lawyers who belong to the same organization he does. No wonder all those people testified before the Judicial Committee that he’s corrupt and dishonest. On behalf of DCF, he issued a flagrantly illegal gag order and then claimed to not be a member of the AFCC, testimony he almost immediately recanted. Of his opinion supporting his gag order, the state Supreme Court remarked that it was “devoid of precedential value.”
But Frazzini’s shenanigans aside, it’s DCF that’s holding Foy’s children hostage.
The DCF frequently seeks temporary custody orders when children are in imminent danger. But over the years, it has become more common for the agency to seek such orders in nonemergency situations, according to Michael Agranoff, an Ellington attorney who represents parents facing DCF investigations. Agronoff complained on his website that to justify such actions, the agency embellishes allegations made in affidavits with "every kind of unverified hearsay imaginable."
Longtime family law practitioner Barbara Ruhe of Wethersfield in an interview agreed that "it’s not totally unheard of" for the DCF to take custody of children who are not being physically abused or neglected.
In short, DCF is violating parents’ rights. Taking children whose parents haven’t been adjudicated to be unfit violates parents’ rights under Troxel v. Granville that established the presumption that fit parents act in the best interests of their children.
Meanwhile, not content with placing his children in foster care, DCF now wants to finalize their separation from their father.
In March, DCF officials filed a plan suggesting that the children should permanently reside with Lisa Foy or be put up for adoption. Eric Foy claims that therapists involved with the case disagree and have recommended joint custody…
As for the final outcome? Eric Foy worries that his aggressive legal approach may come back to haunt him. "The DCF does not like opposition," he said. "They want you to be completely docile. They’ll use everything against you to make sure they prevail."
And that, my friends, is how things happen in the wide world beyond the doors of the U.S. Supreme Court. Parents have rights; it’s exercising them that’s the problem.
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