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I am an attorney. My largest area of practice is in the representation of youth in dependency cases. These cases are governed by statutory law, and, in general, the statutes do a pretty decent job of protecting the rights of parents. We may often hear about cases where some form of child abuse or neglect has occurred, and as thoughtful human beings, we tend to respond with a sort of knee-jerk anger directed at parents. We condemn what is often despicable behavior, and we are eager to see children removed and placed in better situations.
But consider what we’re doing when we choose to allow state intervention. It seems fairly uncontroversial to say that children ought to be kept safe, and that the state has an interest in keeping them safe, no? Well, I guess that all depends on your understanding of safety. It depends on the confidence we have in people who would make determinations of safety, and the myriad considerations that go into what really is a complex analysis. Consider that our government is taking legal steps to interfere with the construction of families, and think about what rights and what burdens of proof you might require of any government that wished to interfere with the construction of your family. Not all cases are simple. In fact, virtually none of them are. And, as with everything, our actions carry costs. Are the consequences of removal worth the benefits of some harm being mitigated? What if the cure is worse than the disease?
This is something that we should not enter into lightly. It is not something that we should trust to just anyone, even those people who we deem to be “experts.” When we do enter those waters, we should do so with an abundance of caution, with protections given, and limitations imposed.
I’m sorry, Mr. M__, I believe you just said something about … go ahead and give me your specific concerns for what is being considered by this court and what is being relied on that you think is inappropriate, here.
Your honor, I am speaking specifically about the department’s argument that “because of the health risks posed by COVID-19, [they] recommend only limited visitation” between my client and his mother. RCW 13.34 specifically directs this court to consider the health, safety, and well-being of the child in question, and the department has presented no evidence of any actual and immediate threat to my client’s health, safety, or well-being that would result from having 9 hours visitation with his mother, rather than 4 hours visitation. In that sense, your honor, you are essentially adding your own law to 13.34 in the form of some sort of community safety standard that…
… Mr. M___, if you wish to make the argument that the Governor’s order and the Supreme Court’s orders are somehow unconstitutional, I would recommend that you note that up for a motion and you go ahead and make that argument, but in the meantime …
… That is not what I am saying, your honor, I am saying that this court is still bound by 13.34 and must consider a specific threat to this particular child, and the only thing the department has done here is said “because of covid.” Well, in our county, there are zero hospitalizations and zero fatalities in anyone under the age of 40, and yet you are willing to find that the threat to my client is so imminent, that… what concerns me is not simply that my client is being denied visitation – in what other context, your honor, would you simply accept this sort of evidence, just the supposed common-knowledge of everyone having read about this thing and picked which points they want to take home. You’ve solicited no testimony or evidence in making this decision, just the department saying “because COVID,” and that is somehow sufficient for you to make a ruling that requires a finding of particularized and specific harm with respect to this individual…
… Mr. M__, I see that maybe you believe that this pandemic is no big deal, and that there is no health risk posed, but I am going to go off of the Supreme Court’s guidance, and our Governor’s order – did you read the Supreme Court’s memo? In spite of what you say, there is a health risk to your client, and to the entire community, case counts in county are rising precipitously, and children are dying from delayed effects of the virus world wide, your client is at risk, and everyone in the community is at risk; so what I am basing my decision on, yes, I am basing my decision on the Supreme Court’s and Governor’s orders and the very serious health risk.
That was the second such hearing. In front of my usual judge … who was very angry by the exchange, and who seemed more incensed by the possibility that I was a “denier” than he was about the actual arguments I was making.
The Supreme Court did indeed release a memo designed to offer guidance to all involved, and here is an excerpt:
While in general video or other forms of virtual visitation may serve on a temporary basis to preserve family connections during the time of the public health emergency as described in the Governor’s Proclamations, such visitation will not be sufficient in some cases, because it cannot be accessed by the parent or child, or both, and the disruption/denial of visitation will not be in the best interests of the child. If, pursuant to the Governor’s Proclamation 20-33 and Directive 20-02, DCYF modifies in-person visits between children and their parents or children and their siblings, DCYF will notify the parties of any modification, the child if 12 or older or their counsel if represented, and the CASA/Guardian ad Litem. While this emergency order remains in effect, courts should hear motions by a parent or child seeking in-person visits regardless of whether they are considered emergency motions. Courts should rule on motions seeking in-person visits based on the relevant facts of the case, the relevant dependency statutes, case law, Governor’s Proclamations and Directives, guidance from the United States Department of Health and Human Services Children’s Bureau, public health risks resulting from exposure to COVID-19, the child’s age and developmental level, the feasibility of in-person and remote visitation, functional capacity of the parent and child, the child’s best interests, and the child’s health, safety, and welfare. Any court-ordered in-person visitation shall mandate the specific health, safety and welfare protocols that must be followed.
So, we do still get to have hearings – how nice. We do still get to make arguments – how nice. The court should consider the “relevant facts of the case.” Ok, I guess we’ll all have our opinions on which facts are relevant, but that’s why we have judges, right? The “relevant dependency statues, case law” … yes, I should hope so! But not a heck of a lot of case law that talks about pandemics, or maybe I just haven’t gone back far enough. But here it is: “The Governor’s Proclamations and Directives, guidance from the US Department of Health and Human Services Children’s Bureau, and … public health risks resulting from exposure to COVID-19.”
My goodness. In law school they do still teach us some Latin. I believe the term is Carte Blanche. But I am surely free to draft a motion if I feel that the Governor and our Supreme Court are behaving unconstitutionally. That’s amusing. At the risk of sounding hyperbolic, I am reminded of the accounts by Alexander Solzhenitsyn and others about the seriousness with which soviet interrogators loved to remind their prisoners of their “right to appeal.”
A week prior, in front of a different judge in a different jurisdiction, I attempted to put it in perspective. Several years ago, I represented a client who was arguing that she did not wish to have visitation with her mother. I made the request in court and cited my client’s rationale. My client had disclosed sexual abuse on the part of her mother’s boyfriend; her mother had been aware of these allegations for quite some time and accused the daughter of lying. She maintained this position, as well as a great deal of anger directed at my client for “having caused all of this.” My client told me that she and her mother did not get along, that they fought regularly, that visitation caused her to lose sleep at night and perform poorly in school. When I made the request, I was reminded by the judge that a parent’s right to visitation is a strongly protected right. I had presented no evidence – I objected that my client was perhaps the best person to describe her own state of mind (objection noted) – and had provided no facts that could possibly override this all-important right. Perhaps if I were to secure the testimony of an expert witness such as a psychologist or even a therapist, but as it was, there was simply no way that the court could rule, based solely on my arguments, find that there was an imminent threat to the health, safety, or well-being of my client.
I told the judge that this is a conversation I regularly have with teenagers who are angry with their parents (for being abusive, for using drugs, for neglect, for choosing a boyfriend or girlfriend over children). This is a right that is treated very strongly in our statutes. Sometimes, there are actions we can take, but usually those actions cannot be taken right away. Do your best, try to make it work, and be sure to stay in good communication with me, to be honest with your therapist, and so forth.
So what happened to this jealously protected right? Presumably, it is a right of the children just as much as it is a right of the parents.
Prior to the hearing, I sent the following email to all of the parties involved (but obviously not the judge), in response to an email from a guardian ad litem, calling for the postponing of visits “for at least the next several weeks” as a result of four new positive tests that day:
I’d like to give a little bit of context on this. Keeping in mind that, as with any dependency, it is the court’s responsibility to consider the safety of the child.
With respect to COVID, according to the [County] Community Impact Dashboard: there are 44 confirmed cases (with 968 testing negative). There are 61 pending results, but if roughly the same percentage holds true, you might expect 2 or 3 of those to be positive.
More importantly, [County] has zero deaths from covid. The dashboard does not indicate whether there are any hospitalizations.
It is perfectly fine to point out that there is an illness currently at the forefront of everyone’s minds, especially due to the actions of our governor, which all but require that this be at the forefront of everyone’s minds. But if we are talking about actual risk of harm, and the actual safety of [my client], who is the only subject of this dependency and whose safety should be the only consideration with respect to whether or not visits are permitted, it is important to consider that the risk that this particular illness poses to [my client] is virtually zero. On the flip side of that, we have a youth with pretty severe psychological issues, who has been largely confined to his home for the past several months. He very much wants to visit with his family, and has made that abundantly clear. This, too, should be a serious consideration when we are determining what is best for [my client].
Perhaps we should take [my own county, just to the south] as something of a better example, since we’ve been talking about 4 new cases here and there up in [county]. [My own county] has, as of right now, 2025 confirmed (past or present) cases of covid. There has never been more than 25 hospitalizations at a time, and there have been 67 deaths. An overwhelming majority of those deaths have been in nursing homes, a majority have been in the demographic of individuals aged 80 and above, and all but 5 were individuals with serious underlying conditions (not simply the existence of some medical condition).
There have been zero deaths for people in [my client]’s age group. There has been 1 death (again, an individual with serious underlying conditions) in [my client]’s Dad’s age group (though, again, we are concerned with [my client]’s safety). As testing increases, as with literally every contagious disease in existence, “case counts” are going to go up. That is going to happen indefinitely. The risk to [my client] remains essentially 0%.
As COVID has been forced to the main stage of everyone’s collective consciousness, it is very tempting to pretend that it is of primary importance with respect to everything that we are doing. But it’s not. Nor is it even close. There are a lot of things to consider with respect to [my client]. The importance of family bond is primary among them, as are his particular mental health issues. His chances of being injured in a car accident on the way to a visit greatly outweigh his chances of contracting, much less suffering even mildly, from covid. The damage to his mental health from being denied visitation also greatly outweighs the potential of suffering in any manner whatsoever from covid.
In no way is this a reason to postpone visitation between [my client] and his father. Quite the opposite, in fact. It is very important that we help return some sense of normalcy for this child whose life has been turned upside down over the past several months, and there is absolutely no danger to him that will come from in person visits with his dad.
I did not read or repeat the entire email in court, but I did hit all of the same points. With similar results:
… and with respect to the issue of visitation, let me just say that Mr. M__ is absolutely 100% wrong. This pandemic does pose a serious threat to [his client], and it doesn’t matter whether there are fewer fatalities in people of his age, that’s not my only consideration. I am thinking about the whole community, and this pandemic poses a serious threat to the whole community. What if [client] touches catches this disease, and then he passes it on to someone else, and that person passes it on to someone else, and the whole community is what’s at risk here. So while I am not going to grant the department’s request for no visitation, I am going to accept the recommendations of the guardian ad litem, that [client] and his father wear masks at all times – and frankly, the father should always be wearing a mask at all times, whether in visitation or not – and that they stay six feet apart at all times.
The guardian ad litem followed up in an email, suggesting that really, though she hadn’t thought of it during the hearing, they should be temped before every visit as well. Brilliant.
Funny how laws get turned on their head like that. Funny how standards of evidence and burdens of proof are just as fleeting as whatever wind it was that blew COVID into our lives to begin with. During the week following that ruling, I exchanged some heated emails – apparently, the social worker (who never wanted this visitation to begin with) stated that, regardless of the court order, the department was not permitted by the Governor’s stay-at-home order to arrange for visitation, and therefore she would keep tabs on the Governor’s orders to see when this would be lifted. I responded harshly, and after a few days, the excuse was now that the social worker needed to consult with the head of the department, or the powers that be, to determine which sort of mask would be required, and whether the department could provide those masks. And on and on …
Well, at least my own judge, this morning, did not require that masks and social distancing were going to be a requirement, though I suppose he surely could have.
Carte Blanche, provided the governor declares a state of emergency – funny thing, there’s a statute for that, too. If you don’t think the actions of the governor and the supreme court were legal, feel free to note that motion with your local commissioner.
* * * * *
I am not a doctor. I know doctors, and as a lawyer, I am that obnoxious patient who attempts to reason through everything, and who asks his doctors for full explanations that amount to re-caps of what they learned in medical school. I read to understand, and to solve problems, and I read thoroughly. I am not an “expert,” but I am intelligent, and I think that quality is sometimes understated, especially when we can so easily dismiss arguments by appealing to a greater authority. Just listen to the experts. What’s that? No… not those experts. Listen to these experts. What do you know, anyway … are you a doctor? Are you an expert? I didn’t think so.
With respect to COVID, we are all experts. We all have access to the same information, all of the same studies, the same numbers, the same charts and graphs, the same data – we are all peers, and we have all been reviewing for the past several months.
There are a great many thoughts that I began to have back in February, many of which have persisted, and many of which have developed over time, as new evidence emerges. When this was allegedly confined to China, I was told that it wasn’t a problem for the United States. I had a hard time believing that. Even China doesn’t weld people into their apartments for something that isn’t going to be a problem. Why don’t the Chinese respond this way to the flu? Now, in retrospect, I believe we have enough evidence to understand why even China would overreact. They may well have known where this originated. That doesn’t mean it was a biological weapon, but it does mean that they understood that it was an unknown. Now it seems that China has realized that they can shift back to pretending that it doesn’t exist. They have learned just as we have.
Back in March, I was told that this virus was extremely deadly. I was also told that something close to 80% of people were asymptomatic, and I was told that the virus was aerosolized and capable of spreading just by people passing in close proximity to one another. Back in March, it seemed like we couldn’t have it both ways. If it was highly contagious and most people didn’t know they had it, this thing would be everywhere, and it would be everywhere very fast. Unless we really did have bodies piling up in the streets, it couldn’t possibly be nearly as deadly as people claimed. It also couldn’t be contained, as some were claiming at the time and are still acting on, now.
In April, we went from one or two identified and isolated cases that we could trace back to China, to a virtual explosion of cases, seemingly in a matter of moments, peppered throughout all states, with no known connection to China or to Italy. We had started testing widely, and everywhere we tested, we found COVID. In April, it seemed to me that contagious illness does not spread like a Jackson Pollack, but that they rather creep like The Blob. I wondered if maybe the illness was somewhat more ubiquitous than previously assumed, if maybe it had been here longer, and if maybe it was not quite as deadly as we assumed. I wondered if those curvy graphs we were seeing were actually miscalculating the starting point, and that we were somewhere else along that curve.
But sometime back in March our death counts also began to mount. We were – and we still are – treated to a daily running tally of deaths, seeming to rise uncontrollably. We were told that hospitals were going to be overwhelmed, and we were sold on “flattening the curve.” Two weeks was all it would take, and we wouldn’t lick this thing, but we’d save our hospitals. I kept looking at the numbers, but none of it really seemed to add up. The virus appears to behave irrationally – and it seems to me that things without brains are incapable of behaving irrationally. Only humans can do that. Nature virtually always follows a pattern. I don’t expect this part of nature to be an exception. So what exactly is the pattern?
Well, when we have an answer to that, we have the problem solved, don’t we?
I suppose – but we already do see patterns. If we look at the history of pandemics, we see patterns, and it isn’t masks and social distancing that have acted as nature’s vaccine as far as I can tell. But even with this one, we see patterns. We see that nature is not actually irrational and that humans still are. Many of those early contradictions still exist. We are now embracing the contradictions in exactly the same way the #metoo movement has managed to believe all women, except … well. Just this morning, I saw some sense in what seems to be a pattern. I read about Florida. Lost in all of the panic of this pandemic, and lost in all of the made-for-primetime stories of heartbreak and loss, amid the anecdotes about the one family that lost four members, the 20-year-old soccer player, the Broadway star who lost a leg … buried in all of that is the fact that this virus overwhelmingly prefers the old and infirm. In Washington state, if you look hard enough (but not on the official website), you will find that over 60% of COVID fatalities have occurred in nursing homes. That isn’t just Washington State, it is a pattern… It is a pattern we’ve known about for a while. So why was I so interested in Florida? Because of New York, obviously.
New York City has become the focal point of this entire pandemic, outpacing Milan and Wuhan, due in large part to the fact that – let’s face it – most of our media outlets are based in New York. But it also accounts for a vast majority of COVID deaths in the United States… and, not randomly. You’d think that nature was still being irrational, because DeBlasio sure is – the people of New York are told they must wear masks, they cannot go to beaches, they shouldn’t ride subways, and they really ought to stay inside. But the nursing homes? Take them away and what becomes of New York’s death rate? So what’s the lesson we learn from New York?
Not New York – the lesson is in Florida. Keep up. Florida, it seems, did not prescribe the nuclear bomb. Florida had access to the same numbers that we don’t seem to hear enough about – it knows about this virus’s penchant for the elderly, the infirm, and particularly the residents of facilities. And Florida ought to have been terrified, unless I am wholly mistaken about my vision of Florida as essentially the east coast version of Sun City. Regardless, Florida seems to have taken a narrowly tailored approach, opting to protect its nursing homes.
I wonder how many contradictions we could eliminate if we took the same approach?
Well, we have a virus that attacks the elderly and the infirm, we know that something close to, or even more than 60% of deaths occur in nursing homes (and this may not even include individuals who are transferred from nursing homes and die in hospitals). We know that this illness is fairly widespread and fairly contagious, even if it is not quite as widespread and it is not quite as contagious as previously assumed … and, for all we have been hearing about the impossibility of “herd immunity” from people who love to do the simplest of math (i.e. we have 3% infection and 96,000 deaths, so in order to get to 80% infection we would need how many million, again? oh, crap), the fact is, we also have the history of all other coronaviruses, none of which died out because of “herd immunity,” but none of which are presently a threat.
Why is that? Because everyone in Japan and South Korea wears masks? Is it because nobody hugs outside of Italy? Is it because Asians are obsessively tracked by their big-brother governments?
Or – maybe – maybe these contradictions indicate that some of our assumptions are simply wrong, and maybe that is because nature is not actually behaving irrationally. Maybe we have a virus that impacts the old and infirm far differently than it impacts the young and healthy. Maybe, if contained solely within the sick and elderly demographics, it would infect 80%, killing 25% of them, before finally burning itself out – and maybe, if contained solely to the young and healthy demographics, it would circulate widely, nobody would notice, and it would either die off or mutate into another common cold.
Maybe, if we looked at patterns instead of dreaming up new feel-good ways for the whole community to join together in solidarity, wearing masks, social distancing, and staying home to save lives(!), maybe we would do something close to what Florida has done, and something far, far different than what New York has done.
We don’t need to respond to a disease that attacks the elderly and infirm by asking the young and healthy to go to drastic measures to avoid infection and spread. We do not need to obsessively track our population in order to seek out every case, while simultaneously telling people to cover their faces because death exists as a fog surrounding the healthy. We do not need to fundamentally transform society so that we never congregate in groups and our children grow up as terrified hypochondriacs.
But we love to live out our contradictions, don’t we?
* * * * *
Back in court, I can only dream about what life would be like if we could apply the standards that our governments and supreme courts have adopted for COVID in other circumstances.
Your honor, due to depression, I am asking that visitation between my client and her mother be suspended or at least curtailed.
Mr. M__, you’re going to need to be a bit more specific than that.
Well, depression effects millions of Americans, as we all know, and … what if the visit makes her more depressed and she ends up taking it out on someone else, who takes it out on someone else, and, as we know, depression isn’t just an individual problem, it is a community iss…
…Have you filed any sort of declaration or affidavit with the court, citing evidence for your assertions with respect to the impacts of depression, the existence of depression in your client specifically, and the potential that my decision with respect to visitation might have any impact on any of the above? Are you requesting a hearing with expert witnesses? Do you have expert testimony showing that your request will alleviate the depression rather than cause more depression? Do you have expert testimony showing that this visitation is the primary source of your clients depression? Under what authority and on what basis do you expect me to grant your request? Can you point me to the statute that requires me to consider anything other than the actual and particularized – and proven – harm to your client?
oh, well, yes your honor, I know that this is how we used to do things, but I thought everything had changed… I’m sorry, how about this, instead? I am requesting that visitation be suspended … because COVID.