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Beyond Contempt

The child-protection system wants to shut down family-rights activist Suzanne Shell. And vice versa.

Shell's current site requires parents to download and sign a document granting her power of attorney before she will provide services. The document doesn't give her a license to practice law -- the Supreme Court's regulators spent a lot of time explaining that to her, too -- but it does give her permission to videotape their stories and authorizes her to gain access to confidential court records and discuss the case with their lawyer. And that's exactly what she was trying to do, Shell says, in the two D& N cases that led to her contempt charge.

In early 2003 Shell faxed a seven-page letter to Pueblo attorney Daniel Kender, who represents many parents in D&N cases in Fremont County as a court-appointed counsel. Shell informed him that she was contacting him as the "agent" of one of his clients, a mother who was facing termination of parental rights after various alleged incidents of abuse and neglect of her daughter. She then directed him to file various documents on his client's behalf, including something called "admissions."

"We have had great success using admissions in the past," she wrote. "Of course, if you feel this is inappropriate, I am requesting that you contact me immediately to explain why and to offer another alternative."

Kender assumed Shell meant a request for admissions, a tool for discovery that he'd never used in D&N cases because state agencies are required to make full disclosure of their case to the defense. He ignored the letter and Shell's requests.

"I considered it spurious paperwork," Kender testified at Shell's contempt hearing. "She did not have any reason to be involved in this case at all."

A few days later, Shell sent Kender another fax. This one notified him that she'd been "engaged as an expert consultant" in another case he was handling. The client in the second case was also a mother whose daughter had been placed in a foster home; the mother, April, was developmentally disabled, and there had been recurring contacts with social services over the daughter's head lice and supposedly unsuitable living conditions.

"You are hereby directed to treat any communication with me as privileged," Shell wrote. "The best course for April's protection is if you were to consider me part of your legal team and hire me to assist you.... As long as you are providing a vigorous defense on April's behalf, you will not be charged any fees for my services.... Delays and failures to properly prepare or respond will be considered ineffective assistance of counsel and malpractice."

Again, Shell directed Kender to file a slew of court documents that "will raise all relevant constitutional issues. This is not negotiable."

Kender wasn't interested in hiring Shell as part of his legal team. He ignored that letter, too.

Over the next few weeks, Kender was alarmed to learn of motions in both cases filed with the court without his knowledge. The motions listed him as the respondent's attorney but were signed by the mothers themselves. The documents challenged his competence, made questionable discovery demands and, in April's case, contained admissions that Kender regarded as tantamount to a "confession" of parental neglect, damaging her defense.

Meconi urged the court to throw out the odd documents, which he considered to be poorly written and inappropriate. He knew Kender hadn't prepared them, and parents aren't allowed to represent themselves when they already have an attorney. He also had serious doubts that either mother had actually drafted the documents they'd signed. Another attorney in the case had described the first mother as having "significant mental problems," and Meconi regarded April as "very limited, very malleable and easily influenced." He'd seen similar documents on Shell's website and in other cases in which she'd become involved.

"I saw this and said, 'Here we go again,'" he recalled at Shell's hearing. "It was clear to me that she'd become involved in these cases, as she had in others, and was acting in a way that was damaging to the families."

The first mother, who was living in California, ultimately lost her parental rights. Kender withdrew from April's case, citing Shell's interference. Judge Marshall was so perturbed at the situation that she held hearings on the matter, questioning April closely about the meaning of the documents she'd filed. The judge concluded that April "did not author any of these documents and, in fact, has somewhat limited understanding of what the documents are."

Marshall issued an unusual ruling in the case, naming Shell as a "special respondent," subject to the judge's orders. She declared that Shell "has essentially been providing legal advice" to April's detriment and ordered her not to have any contact with April at all.

Shell fought back in federal court, filing a lawsuit against Meconi, Kender, several employees of the Fremont County Department of Human Services and the county's district courts. Among other claims, she argued that Marshall's broad order violated her constitutional right of freedom of association, as well as her right as a journalist to interview sources for her documentary. Joining her as co-plaintiff in the suit was April herself, who made a strident plea to retain her advocate: "All the defendants have acted together, behind my back, to try to use the state laws to force me to stop using Suzanne Shell as an advocate."

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