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PROBATE COURT NOMINEE CITES FAMILY, FAITH AS HIS INSPIRATION
By Kyle Cheney
STATE HOUSE NEWS SERVICE
STATE HOUSE, FEB. 6, 2008…..Gov. Deval Patrick's nominee for a seat on the Probate and Family Court, today told governor's councilors that the breakup of his sister's troubled marriage propelled him to take up domestic and family law.
"I observed the deterioration of her marriage and the assault on her self-esteem by an abusive husband," said Richard Simons, a former Norfolk County assistant district attorney and longtime Pittsfield lawyer.
Simons weathered tough questioning by Councilor Christopher Iannella who said many family and probate judges had failed the state's children by neglecting their best interests and by too readily splitting up families.
"I think a lot of the judges have let the children down," Iannella said. "What is the criteria for you in cases where either spouse wants to remove the child from the commonwealth?"
Simons said there were "no broad conclusions" about how to handle removal cases.
"I start from the position that children need both parents. And that's an ideal," Simons said. "Every case that comes before the court is an unusual case. There are so many different circumstances that play into people's lives…You just have to balance all of that."
Later, Iannella said, "I'm going to give you a shot. I'm going to vote for you next week. I just hope that you remember those folks who come before you."
Simons, who estimated that half of the cases he works on are divorce cases, said his strong religious faith would help guide him.
"It has provided our family with meaning and structure," he said. "I know my family and my faith will continue to nourish my soul so I will not become depleted."
Asked by Councilor Mary-Ellen Manning whether he would have any objection to sitting on cases involving same-sex couples, Simons said he would not.
"I have mediated same-sex dissolutions," he said, noting that he had just recently litigated a custody dispute with a same-sex couple.
His most unusual and rewarding case, he said, involved a 17-year-old Jehovah's Witness who had refused to accept a blood transfusion for her ruptured spleen. The case, Simons said, was a unique blend of right-to-die, religious, children's rights and health care laws.
"I came into her life at the time there was a crisis. It was such an opportunity to be involved in her life at that time," he said. "It was very exciting to be on a cutting edge issue of the law. There was tremendous excitement around that case."
Simons, son of former Superior Court Judge William Simons, is a partner at the Pittsfield firm Simons, Smith & Gerrard P.C., which he helped formed in 2000 after leading his own law firm, Simons & Associates for four years. Prior to that, he led the firm Reder & Simons from 1993 to 1997. After Simons's father retired from the bench in 1993, he joined his son's law practice and continues to work with him today.
"It is no surprise that I ended up following my father into the legal field," Simons said. "I witnessed the good that he accomplished and the sterling reputation he had earned."
As an assistant district attorney from 1985 to 1989, Simons worked under then-Norfolk County District Attorney William Delahunt. After a brief stint in a Boston law firm, Simons spent four years at the law firm of George, DeGregorio & Massimiano.
A 1985 Boston University School of Law graduate, Simons graduated cum laude from Union College in Schenectady, N.Y., in 1981, after a tenure in which he spent a semester abroad in Colombia.
Witnesses speaking on his behalf painted Simons as a devoted family man whose personal virtue would be an asset to the court.
"He is a great human being who cares about people," said Judge Edward Lapointe, first justice on the Berkshire Probate and Family Court. "I urge you to confirm him as soon as you can. Lord knows we need him and we're waiting for him."
Other witnesses included Christine Barash, head of the Sinai Academy; Christine Sherman, a paralegal with Simons's law firm; and attorney Michael McCarthy, a Pittsfield lawyer and immediate past president of the Pittsfield Bar Association. Probate and Family Court Chief Justice Paula Carey also attended in support but did not speak.
Simons was joined by his wife Marcy and his two daughters.
SJC: PARENTS OF TROUBLED CHILDREN HAVE RIGHT TO PUBLIC COUNSEL
By Kyle Cheney
STATE HOUSE NEWS SERVICE
STATE HOUSE, BOSTON, FEB. 5, 2008…..Parents who had been denied court-appointed lawyers in hearings to assess the needs of their troubled children received a boost Tuesday from the state’s highest court.
The Supreme Judicial Court reversed a lower court ruling that denied parents the right to court-appointed counsel at hearings to consider transferring custody of their children to the state.
Every year, thousands of parents, police officers and teachers file Child in Need of Services (CHINS) petitions with the Family Court seeking services for runaway, truant and otherwise troubled children. In some cases, the court has deemed parents unfit to care for their children and transferred custody to the state. But some parents have fought back, arguing that they were unfairly denied the right to a court-attorney, who could have kept them better informed and better involved in any custody battles.
The Worcester and Essex County Divisions of the Juvenile Court have ruled that parents have a limited or even non-existent role in the court’s decisions and therefore were ineligible for public representation. For the first time, the SJC repudiated that line of thought and asserted parents’ rights to a lawyer when their children’s custody is at stake.
In superseding the lower-court ruling, the SJC determined that “a judge cannot focus exclusively on the child in making a [CHINS] determination.”
“Even though the focus of the proceeding is on the child's behavior…and there is no declaration of parental unfitness,” the court found, “a [CHINS] determination means that the judge must ‘certify that the continuation of the child in his home is contrary to his best interests.’”
According to state law, a child in need of services is defined as “a child below the age of seventeen who persistently runs away from the home of his parents or legal guardian, or persistently refuses to obey the lawful and reasonable commands of his parents or legal guardian” or “a child between the ages of six and sixteen who persistently and willfully fails to attend school or persistently violates the lawful and reasonable regulations of his school.”
“In [the Essex Court’s] findings, the motion judge stated that [the parent] did not have a constitutional or statutory right to counsel, that she was not a party to the [child in need of services] petition, that she had no enforceable legal rights in the CHINS proceeding and that she had no right to be heard except at a judge's discretion,” according to the SJC ruling.
Advocates for children said the ruling should provide an impetus to reform the current CHINS system.
“We’re very pleased to see this decision,” said Nancy Scannell, director of policy and planning for the Massachusetts Society for the Prevention of Cruelty to Children. “We feel that the involvement of parents at all stages of determining what’s in the best interest of their child is critical. The decision itself points out the way in which the CHINS system in its present form marginalizes the role of parents.”
Scannell acknowledged requiring the availability of public counsel would have “resource implications” on the state’s court system, although she said an exact number would be hard to predict.
Lisa Lambert, executive director of the Parent Professional Advocacy League, which was a party to one of the lower court cases, said the ruling would help end a system that prevents parents from making responsible decisions.
“You’re better informed if you’re in arrears on your car if you don’t pay than you are when you go before the court [in a CHINS matter],” she said, adding that the SJC justices “really thought about this as if they were parents, which they probably are. It’s very cool. There are lots of parents this is going to affect, lots of families this is going to affect.”
State officials estimate that approximately 9,000 CHINS petitions were filed in 2005, the most recent year those figures were compiled.
Rep. Paul Donato, a vocal advocate for CHINS reform, has recommended community-based programs for children, arguing that courts too readily break up families.
“There's something that has to be done to address the needs of these children who are going before the courts either for truancy or stubbornness,” he said at a November hearing of the Committee on Children Families and Persons with Disabilities. “It's incumbent upon us to look beyond the child and look at what the family situation is as well.”
Donato was testifying on behalf of H 3466, a bill co-sponsored with committee Senate Chair Karen Spilka (D-Ashland) that would establish a network of community supports for children requiring assistance and de-emphasize the role of the courts.
“The purpose of the community-based crisis intervention services program shall be to assist families in crisis so that children will be able to continue residing with their families in their home communities; assist families to enable children to continue as students in their community schools; strengthen the relationships between children and families; and provide coordinated, comprehensive, community based services for children at risk of dropping out of school, delinquency, or engaging in behaviors which impede the likelihood of their leading healthy productive lives,” according to the proposal.
The bill is still awaiting a committee report.
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