Saturday, June 20, 2009
Albany County Judge Gerard Maney Charged With DWAI
Albany family court judge Gerard Maney arrested for DWAI
June 20, 6:09 AM · Daniel Weaver - Albany CPS and Family Court Examiner
Albany County Family Court Judge, Gerard E. Maney, was arrested by Green Island Police on Thursday evening, June 18, 2009, and charged with DWAI. Maney allegedly had a .07 BAC and attempted to avoid a DWI checkpoint by making an illegal u-turn.
Besides being Albany Family Court Judge, Maney has also been acting Supreme Court Justice since 1991, Judge of Family Treatment Court since 2002 and Judge of Juvenile Drug Court since 2006.
Maney was the focus of national attention in 2000 when Jill and Michael Carroll of Berne took their son off of Ritalin and were charged with neglect (see articles below). The Carroll's had become concerned about the side effects of the drug prescribed for their son who had ADHD. Judge Maney sided with Child Protective Services, without hold a fact finding hearing according to the New York State law journal.
A September 29, 2006 Times-Union article claimed that Judge Maney had seen 23 men and women successfully complete drug and alcohol treatment in his court.
In 2001, the Third Division of the New York State Appellate Court overturned a ruling of Judge Maney's that had terminated a father's visiting rights. According to the New York Law Journal, the court ruled that Maney had expressed hostility toward the father and his attorney and thwarted the father's efforts to visit his son. The case was then turned over to a different judge.
There are currently no plans to remove Judge Gerard E. Maney from the bench while he awaits the outcome of the charges against him.
New York State Office of Court Administration - relationship map
Albany County judge charged with DWAI
Updated: June 19, 2009 05:04 PM EDT
An Albany County Judge has found himself on the other side of the law after running into some trouble at a DWI check point. Judge Gerard Maney is facing charges that he had too much to drink when he got behind the wheel.
Green Island police say around 8:00pm Thursday night, Maney turned onto the Green Island Bridge and became one more driver ensnared in a highly-publicized checkpoint.
According to police, Maney even tried to do a u-turn on the bridge to avoid the traffic stop. Police followed after him and they say he did not pull over until he had driven a mile and a half more.
Police say the judge's short and slow run from the law ended outside the Purple Pub in Watervliet, when Maney was pulled over.
After failing a field sobriety test, police took the judge in where they say he blew a .07; not drunk, but still impaired.
Maney received a ticket and was sent home.
NEWS10 went to Maney's home on Friday, but found out that he was actually at work; deciding on cases at the Albany County Courthouse.
Many people in the legal profession who NEWS10 spoke with told us Maney has a sterling reputation. He has served as a Family Court Judge since 1991 and even established the Albany County Family Treatment Court.
A statement issued by Family Court Chief Clerk David B. Cardona said of Maney, "He's a good guy. A great judge. He is well respected not only by those who work with him but those who appear before him. As for the allegations, we have no comment." [Editor's note: David Cardona, a lawyer and Chief Family Court Clerk in the same court as Judge Gerard Maney, is speaking out in support of his boss, Judge Maney. David Cardona is also the son of the Presiding Judge of the Third Dept, Anthony Cardona](pictured at left).
At the very least, the arrest may stall Maney's aspirations for a higher bench. Just this past week, he announced his candidacy for State Supreme Court Justice.
Right now, it is unclear if these charges will affect his run.
Because Judge Maney was not legally drunk at the time, he was actually issued a DWAI and not a DWI. So what's the difference?
Under the law, anyone with a blood alcohol level of .08 or higher is considered legally drunk. That's when police issue a DWI. If the blood alcohol level is under .08, but above .06, it's considered driving while impaired, and the person is issued a DWAI.
Albany County Family Court
Sobriety check snags judge despite alert
Albany jurist accused of DWAI count; cops say he tried to flee
By ROBERT GAVIN, Staff writer, First published: Saturday, June 20, 2009
GREEN ISLAND -- By the time Albany County Family Court Judge Gerard Maney allegedly tried to avoid a road sobriety checkpoint on the Green Island Bridge (pictured below) Thursday night, it was no secret police were out looking for drunk drivers.
More than 24 hours earlier, District Attorney David Soares (pictured at left) issued a news release to announce that 16 law enforcement agencies would be at DWI checkpoints around Albany County, much they did twice last summer on Thursday nights.
Despite the advance warning, 24 motorists were arrested within a five-hour span - including Maney, a family court judge in Albany since June 1991.
Maney, 59, of Albany, allegedly spotted the checkpoint on the bridge just after 8:30 p.m.
Police in Green Island say he made a U-turn, failed to comply with a traffic stop and led police for a 1-1/2 mile chase before he "finally came to a stop" outside the Purple Pub restaurant in Watervliet.
An officer detected a "strong odor of alcoholic beverage" coming from the judge. He failed a field sobriety test, a police report said.
He was taken back to the Green Island police station, where he registered 0.07 percent on an alcohol test, just below the 0.08 percent legal limit for DWI, sources said.
Maney was charged with a driving while ability impaired by alcohol, a violation akin to a traffic ticket, and issued tickets. He was released but given a ticket to appear in Green Island Town Court at 6:30 p.m. on July 7.
His immediate status on the bench had not changed by late Friday afternoon, said Kari Holloway, a spokeswoman for the state Office of Court Administration. She said the office were aware of the arrest and looking into the details. The case was pending, she said.
But the arrest could have wider implications for Maney's future.
Maney, the supervising judge for the Third Judicial District, earlier this week announced his candidacy to be a state Supreme Court justice. The district comprises Rensselaer, Columbia, Greene, Ulster and Schoharie counties, along with Sullivan and Albany.
Maney, a former assistant corporation counsel for the city of Albany, was appointed to Family Court by former Gov. Mario Cuomo. The state Senate unanimously confirmed his nomination. He began what he described as a "lifelong ambition" on June 11, 1991.
Maney did not return a call to his home late Friday afternoon.
A person familiar with the judicial system's disciplinary procedures against judges told the Times Union that judges arrested on alcohol-related driving allegations, in New York and other states, are generally not kicked off the bench - depending on the details of the case.
They usually receive a public admonishment, the least severe of the three levels of punishment possible from the state Commission on Judicial Conduct, the source said. The next most serious reprimand for a judge would a censure, followed by outright removal from the bench.
The source said reprimands can be more severe than an admonishment in the event of "aggravating circumstances," such as a judge throwing their name and status around during an arrest. While unfamiliar with the details of Maney's arrest, the person said leading police on a pursuit might be considered an aggravated circumstance.
The judge's brother, John Maney, was arrested on DWI and felony reckless endangerment charges in 1991. At the time, police alleged that when he was pulled over on Route 9 in Loudonville, he drove off and almost hit a police officer before being arrested near Colonie Town Hall. The case prompted complaints that he received special treatment from Colonie police.
That September, he pleaded guilty to driving while ability impaired and misdemeanor reckless endangerment and fined $325. The case was adjourned for six months in contemplation it would be dismissed.
Bob Gardinier contributed to this report. Robert Gavin can be reached at 434-2403 or email@example.com
COMMENTS from Crime Confidential
The Mysteries of Ritalin!
In our continuing series, we share with you several of the recent newspaper articles which show a continued biased approach to the truth. As we continue forward, we believe that the truth will come forth and prevail. We hope that these reports will be of benefit to each who read them. If you are one of the millions of people who are currently taking mood-altering prescription drugs, we suggest that you share this series with your family physician - for only through education, will they stop being a part of this form of genocide. Editor
New York Judge Rules Child Has Right to Visit Foster Mother
John Caher, New York Law Journal
June 27, 2001
In an apparent case of first impression in the United States, a Family Court
judge in Albany, N.Y., has held that a child has a liberty interest --
independent from that of his father and rooted in the constitutional
guarantees of freedom of association, equal protection and due process -- to
maintain a long-established relationship with his foster mother.
Judge W. Dennis Duggan's extraordinary opinion holds that a 6-year-old child
can assert a right to maintain contact with a person with whom he has
developed a parentlike relationship: in this case, the foster mother who was
essentially the only parent figure the boy knew from virtually the day he
was born to the day five years later when he was turned over to the custody
of his father.
Although an Australian court had ruled similarly, Duggan (pictured at right) is apparently the
first judge in the United States to expand the concept of free association
in such a dramatic and potentially reverberating fashion in the orbit of
In sum, the decision holds that: a child has a state and federal
constitutional right to maintain personal relations with a person with whom
he or she has developed a parentlike relationship; the child is entitled to
a process to enforce that right against unwarranted restrictions by the
state, a parent or another person; the child's and parent's rights must be
carefully balanced; and the court should presume that the parent's decision
to restrict or end contact with the nonbiological relation is in the child's
Duggan acknowledges in Webster v. Ryan, 1448D, that he is recognizing a
right that is not explicitly found in the Constitution, and one which
requires a delicate balancing of liberties when exercised: the new-found
right of a child to maintain contact -- over the objections of a fit,
biological parent -- to a nonbiological relation against the right of a
parent to raise his or her child free of government interference.
A hearing will be held July 9 to determine if the boy in this case, who has
made no request for visitation with his former foster mother, has standing
to assert a claim and, if so, if granting such a demand would be in his best
interests. Duggan's decision outlines in detail the process for the child to
assert his enumerated and unenumerated rights and, if necessary, the
analysis the court will undertake in its best-interest evaluation.
"The narrow holding in this case is that a statutory scheme that permits
court intervention to order contact between a child and a parent or sibling
or grandparent is an unconstitutional denial of a child's right to equal
protection of the laws when the law does not provide a procedure for the
child to assert the same right with respect to a person with whom the child
has a significant or substantial parent-like relationship," Duggan wrote.
"Since the court holds that such a right is fundamental and constitutes a
liberty interest under the Due Process Clause, the child must have an
effective forum to assert that right."
Webster v. Ryan began as a petition by the foster mother, Harriet Webster,
raising the question of whether she had standing to make a claim for
visitation rights against the father, Alex Ryan Sr. In January, Duggan held
that Webster lacks standing. But in a footnote, the judge hinted at what was
to come and noted in a letter to counsel last month that he would be issuing
a follow-up decision addressing a child's standing to assert a liberty
interest in maintaining a relationship with a nonbiologically related person
"when that relationship has arisen under extraordinary circumstances and for
which the best interest of the child requires that the child have access to
the courts to maintain such a relationship."
BORN AN ADDICT
The case centers on Alex Ryan Jr., a boy born addicted to cocaine on June 2,
1995. Alex's mother, a cocaine and crack addict, abandoned the child of her
boyfriend. The baby was removed from her custody shortly after birth. Ryan,
the father, immediately sought custody, but the child was turned over to the
foster care of Webster. From 1995 to 1998, Ryan was afforded one hour of
supervised visitation each week and in 1999 his parental rights were
terminated by Albany County Judge Gerard E. Maney upon a finding of
Last spring, the Appellate Division, 3rd Department, reversed. In an
unusually pointed decision directed at another court, the 3rd Department
said Judge Maney had "repeatedly thwarted the father's efforts" and
displayed hostility toward both Ryan and his attorney. The 3rd Department
found the record generally supportive of a finding that the father was
qualified to care for his son and remanded the matter, with instructions
that it be handled by a different judge. The case then came before Judge
Duggan granted Ryan custody of his son and initially afforded Webster
temporary visitation against the father's wishes. Webster subsequently
sought an order affirming her visitation rights, and in his January decision
Duggan said he could find no statutory basis for granting her petition. Now,
with the latest opinion, Duggan said that while Webster lacks standing to
seek visitation with Alex, Alex may have standing to seek visitation with
The court relied primarily on two precedents, Troxel v. Granville, 530 U.S.
57 (2000), and Alison D. v. Virginia M.,77 NY2d 651 (1991) -- and then
conceded in a footnote that the result in Alex Ryan's case, if visitation
with the foster mother ultimately results, would probably be different under
a Troxel analysis and would definitely be contrary under Alison D. Troxel was the 6-3 U.S. Supreme Court case last year where the terribly splintered Court -- it issued six separate opinions, three going each way -- struck down as applied in that matter a Washington State statute allowing any person to petition for visitation with any child.
Justice John Paul
Stevens (pictured at right), in a dissent, raised the issue of the child's independent constitutional rights, and Justice Anthony M. Kennedy also lent support to that concept in his dissent. In those dissents, as well as a dissent in a
New York Court of Appeals case, Duggan found authority for his holding.
In Alison D., the New York Court of Appeals held in a per curium decision
that the estranged mate of a lesbian woman could not assert a claim for
visitation. In dissent, now
Chief Judge Judith S. Kaye noted that the law does not define "parent" and that if she were to do so, she would include a "de facto" parent.
TIME FOR ACTIVISM
If Duggan is delving here into the realm of judicial activism -- and he
acknowledges he probably is -- he suggests that there is a time for such an
approach, and that time is now. In the first of 45 footnotes in a 44-page
opinion, Duggan struggles with the Family Court's inability to keep up with
a changing society, bemoans the outlived usefulness of terms like "custody"
and "visitation," suggests that children are usually shortchanged in an
adversary system with winners and losers and notes that he has ceased using
the word "visitation" in his orders, employing the word "parenting time"
With references back to the Federalist Papers and up to the present, Duggan goes to lengths to explain and justify the expansionist nature of his decision. He notes that the U.S. Supreme Court has recognized due process and equal protection rights to travel (Edwards v. California, 314 U.S. 160,1941), to wed (Loving v. Virginia, 388 U.S. 1, 1967) and privacy (Griswold v. Connecticut, 381 U.S. 479, 1965) even though those rights are not specified in the Constitution.
"The judiciary has no equivalent of the Rosetta Stone or Dead Sea scrolls to
divine the Framers' intent or unlock the original understanding of
Constitutional text when making a decision that determines a right or
expands a recognized right," Duggan wrote. "However, there still must be a
faithfulness to the text of the Constitution, a respect for the traditions
and values of our society and a deference to legislative authority."
Appearing in Webster v. Ryan were: Charles T. Kriss of Kriss Kriss &
Brignola in Albany for Webster; F. Stanton Ackerman of Ackerman Wachs &
Finton in Albany and Laurie B. Kurtzman of Schenectady for Ryan; and law
guardian Peter J. Scagnelli of Albany.
REACTION TO THE RULING
"This is an incredible decision," said Ackerman, counsel for the father.
Ackerman said the decision is constitutionally defective in that it tramples
the rights and destroys the statutory and common law autonomy of a
judicially determined competent parent.
"If this ruling stands, we are going to have to add a new branch to the
Family Court system to handle cases of this nature," Ackerman predicted,
adding that he could find no case in the nation that supports Duggan's
finding. "I just find it unusual, and bizarre, that he is discriminating
against a parent with sole custody. The boundaries of this decision are
Kriss declined comment on behalf of Webster, as did Scagnelli on behalf of
Martin F. Guggenheim, professor of Clinical Law and director of Clinical and Advocacy Programs at New York University School of Law, said the ruling has enormous implications. However, he said that in light of the Justice Stevens
and Kennedy dissents in Troxel, and the Court of Appeals' 1992 decision in
Matter of Michael B., 590 NYS2d 60, it was probably just a matter of time
before some judge rendered a decision along these lines.
In Matter of Michael B., although not on point, the Court of Appeals
explored through Judge Kaye the weight to be given a child's bonding with
his long-time foster family in determining the placement that would be in
his best interest. The court found no liberty interest in a foster family
that can survive a child's interest in being returned to his parents.
With the court rejecting the argument that a child has a liberty interest in
remaining with the foster family, the court set the stage for a rule that
would allow post-return visitation in certain circumstances, Guggenheim
said. He said Duggan's decision providing a framework for post-return
visitation can comfortably co-exist with the principle adopted in Michael B.
and the proposition that the law should not countenance a rule that would
trump the very goal of foster care, which is the eventual reunification of
the family unit.
"In tolerating post-return access, courts would be taking into account
better than current law has the needs of children who grow up in
circumstances that no person who cares about children would have wanted,"
said Guggenheim, a family law expert. "Now the question is whether the law
is powerless to take the needs of the child into account. Frankly, I would
hope the answer is 'no,' that there is power in the law to figure out what
the right post-return arrangements might include."
Guggenheim said, however, that the father's views must be taken into account
and should be afforded great deference -- as, in fact, Judge Duggan held.
Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va., said the ruling is detrimental to the extent that it pits a child against his father.
"This ruling, if it is upheld on appeal, will open a Pandora's box leading
to enormous harm to children all over the country," Wexler said. "There is
little more damaging to a small child psychologically than too much choice.
Here, you are placing the ultimate choice in the hands of a very young
Wexler said that once the biological parent is found competent and fit, a
court should defer to that parent's judgment absent extraordinary
"We have lost the fundamental presumption that most of the time parents are
in the best interests of their children," Wexler said. "Even if,
hypothetically, this particular child might do better in a situation where
there is a voluntary agreement for visitation, the tension caused by the
court interference itself, the harm caused by the meddling, outweighs any
possible benefit. What this court has forgotten is what every doctor is
supposed to learn in medical school: First do no harm."
Guggenheim said that while he understands and generally agrees with Wexler's
position, he also believes that a balancing of the interests and rights, as
ordered by Duggan, is both feasible and equitable.
Parents lose fight to take 8-year-old off Ritalin Child's hyperactivity disrupted classes, school officials say
Associated Press, Wire Sevices, October 22, 2000
BYLINE: Lynn Brezosky
The Associated Press
BERNE, N.Y. - The school nurse called during Kyle Carroll's first week of second grade in September. Wasn't Kyle going to be taking his Ritalin?
No, Jill Carroll said, he made it through the summer without the drug and did just fine. She and her husband, Michael, were holding out, hoping the Ritalin days were over.
On Sept. 15, the Carrolls say, they got another call. Their 8-year-old son was in the office and the district was threatening to expel him unless the medicating resumed.
Superintendent Steven Schrade, who wasn't with the approximately 1,200-student school district when all this happened, denies the threat and now says the whole situation with Kyle "was from well-intentioned people and just snowballed."
Confidentiality reasons, Schrade says, prevent him from discussing the case or the battle of wills the Carrolls say took place between Kyle and his teacher.
"I think there are a number of other factors that we can't talk about," he says. "Believe me, Ritalin wasn't the only reason that the family ended up in Family Court."
Meetings would follow, with the Carrolls on one side of the table and a team including guidance counselors and special education specialists on the other.
"I just started throwing things at them, why Kyle shouldn't be on Ritalin," says Michael Carroll, a construction worker. "They just kept throwing things back at me, why he had to be. They didn't let me finish a sentence. They were comparing Ritalin to insulin. It has nothing to do with that. [Without insulin] the child dies. Without Ritalin you've just got to give a lot more time."
The law requires that school employees report instances of neglect to child protective agencies. In Kyle's case, someone at the school equated the failure to medicate Kyle with the unexplained bruises or signs of malnutrition that might prompt other calls.
The matter went to Family Court, where a judge ordered the Carrolls to continue giving Kyle medications prescribed by a physician.
"The case as I see it is educational neglect," says Pamela J. Joern, the law guardian appointed to the case. "Your child has a diagnosis, it interferes with his education, a recommendation is made. It is not followed by the parents. It continues to interfere with his education. The parents take no steps to address the problem.
"It's not a pro-Ritalin decision; it's not an anti-Ritalin decision. A parent failed to ensure their child was able to receive an education."
Ritalin is a brand name for the methylphenidate, which is believed to increase a child's alertness by stimulating the central nervous system.
Psychiatrist Susan Abbott says Kyle probably was better able to learn when medicated.
"If unmedicated, you certainly won't learn as much as well, you won't achieve the same grades, you may not be able to follow your aspirations, attend your college of choice," she says. "When the kids in the neighborhood don't play with you and you fall further and further behind ... that's sad."
American doctors are now writing an estimated 11.4 million Ritalin prescriptions a year - more than double the approximately 4.5 million written five years ago. According to recent studies, the United States makes and uses 85 percent of the world's supply of the drug, and use is now beginning to pick up in Western Europe.
To Dr. Peter Breggin, author of several books on the subject and crusader against psychotropic drugs as a whole, it all speaks of mind control, of Big Brother and ultimately of trampled constitutional rights. Especially when he believes that the malady Ritalin and similarly classed drugs are used to treat - Attention Deficit Hyperactivity Disorder, often called Attention Deficit Disorder - is "a fabrication" meant to label certain personality types as diseases. ADD is not diagnosed from the kind of evidence of brain irregularities that doctors use for, say, Alzheimer's disease or strokes, he says. "The diagnosis is if the kid squirms in his chair, interrupts, is sloppy - a list of things that annoy teachers and make it hard to teach."
Jeffrey Schaler, a psychologist who teaches at American University's School of Public Affairs, agrees.
"There's no deficiency that Ritalin is fixing," he says. "What it's doing is changing a behavior so the child complies with expectations and behaviors expected of him. You drug the child and get him to comply by drugging."
On Ritalin, the Carrolls say, Kyle is a zombie. He barely eats or sleeps; Michael says he senses him lying awake in his bedroom long into the night. When the parents went to school to view the children's pipe-cleaner bug projects, all the other children ran around excitedly. Kyle sat at his desk, staring off into space.
"We'd rather have him hyperactive than 'duh...,"' says Jill, who works as a store clerk.
Side effects like Kyle's are often attributed to Ritalin; the drug has also been associated with stunted growth and irregular heartbeat.
The Carrolls, who have three other children, feel the school would rather drug Kyle than take time with him.
Says Abbott, "I think in a world where each child can have their own teacher that would work. But in a class where teachers spend 33 percent of the time on one child with ADHD, you kind of have to think of the real world here."
After heavy media attention, the Carrolls' doctor has agreed to take Kyle off the drug and he has been enrolled in a special education program in another school district.
Ritalin Case Puts Parents, Courts on Collision Course
BY JOHN CAHER, New York Law Journal (August 17,2000)
ALBANY - An educational neglect case in Albany involving a 7-year-old boy whose parents were hauled into court after taking him off Ritalin has sparked a national debate over privacy rights, judicial authority and parental sovereignty.
The Kyle Carroll case is apparently the first in the nation in which parents were pressured - if not outright ordered - by a judge to give their child the controversial stimulant after the school district petitioned the court.
Albany County Family Court Judge Gerard E. Maney has become something of a lightning rod for criticism in a widely reported matter illustrating some of the legal complexities that arise when schools and courts are confronted with a child covered under the Individuals with Disabilities Act (IDEA), 20 U.S.C. 1400.
His ruling has galvanized parental rights advocates who insist that the courts have no business ordering parents to administer a psychotropic drug to their child, even though that is not quite what Judge Maney did in the case.
"It is enormously harmful for the child for Gerard Maney to substitute his judgment, or for a [Child Protective Services] caseworker to substitute his or her judgment, in these circumstances," said Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va. "I don't believe the child welfare law was ever intended to be used this way."
The case, and ensuing debate, involves a boy in the Berne-Knox-Westerlo School District who was diagnosed with attention deficit/hyperactivity disorder, or ADHD.
Kyle Carroll is among some 3.8 million school children, mostly boys, with ADHD, according to the American Academy of Pediatrics, and one of at least a million kids treated with Ritalin. ADHD is a disorder covered under the Individuals with Disability Education Act, which requires school districts to provide educational services in the least restrictive environment that will meet a child's needs.
Upon the recommendation of a psychologist, a doctor prescribed Ritalin (methylphenidate) and, under the mandates of IDEA, teachers crafted an Individualized Education Plan to accommodate Kyle. Ritalin was administered and Kyle became subdued.
But Kyle's parents, Jill and Michael Carroll of Berne, a rural community outside Albany, grew concerned over the side effects their son seemed to be exhibiting - sleeplessness and loss of appetite, both of which have been associated with Ritalin - and informed the school that they wanted to take their son off the drug for a couple of weeks to see if the problems cleared up. That resulted in a visit from an Albany County Child Protective Services worker, and ultimately a petition that landed before Judge Maney.
In court, the school district accused the Carrolls of educational neglect. Michael Carroll was represented by Assistant Public Defender William P. Andrews. Attorney Ruth H. Supovitz of Albany appeared for Jill Carroll.
The law guardian, Pamela J. Joern of Albany, supported the district's position that the family should be required to address Kyle's condition.
"The child was diagnosed with ADHD, not by the school but by a psychologist, and a medical doctor prescribed Ritalin based on the recommendations of the psychologist," Ms. Joern said. "The child took it for a period of time, his behavior improved and the parents unilaterally decided, because of their own beliefs, that they weren't going to give him Ritalin. His behavioral problems returned and interfered with his school performance."
No hearing held there was no fact-finding hearing before Judge Maney. There was no testimony taken and there was no written decision rendered.
Instead, the Carrolls, under at least the theoretical threat of having their child removed from their custody, consented to an adjournment in contemplation of dismissal (ACOD).
"The consent ACOD directed the parents to comply with the doctor's treatment regimen, which was a prescription for Ritalin," Ms. Joern said. "They could get a second opinion, but they couldn't ignore the problem.... This was not a case where a judge directs parents, over their objection, to give a child a prescribed medication. That is just not what happened."
Regardless, media and commentators around the country have weighed in with Brave New World concerns, many of them focusing - unfairly in Ms. Joern's opinion - on the supposed heavy handedness of Judge Maney.
Mr. Wexler said the Albany County Family Court overstepped its bounds by, in effect, compelling a particular medical regimen in a situation that was clearly not life-and-death.
"It is not as if these parents simply refused Ritalin outright," Mr. Wexler noted. "They tried it. They saw that it was having harmful consequences for their child and they did what any responsible, loving parent would do.... It is terribly damaging for children for the state to rush in willy-nilly and substitute its judgment for parents in those situations."
Professor Jeffrey Schaler, a psychologist who teaches Justice, Law and Society in the School of Public Affairs at American University in Washington, D.C., said the consent decree constitutes an inappropriate use of judicial authority.
"I think that parents have a right to not give their kids drugs and this deprives the parents of the liberty of raising a child as they see fit," Professor Schaler said.
"If the child is disruptive in class, the school has a right to ask that something be done, but I don't think that is the equivalent to saying they must put a particular chemical in a child's body."
Ritalin, Professor Schaler said, does not address a medical condition the way, say, insulin addresses the condition of diabetes. Rather, he said, it is a "form of social control," an area where judges should not tread.
"What the judge is doing here is engaging in parens patriae," Professor Schaler said. "Invading a child's body or person with a chemical is an invasion of privacy and also a deprivation of due process. It deprives the parents of the liberty of raising their child as they see fit, and deprives the child of the liberty to not be on Ritalin."
Professor Schaler said a more appropriate judicial response would have been to impose on the parents the responsibility of making sure their child is not disruptive in school, and affording them the autonomy to find their own solution.
But Ms. Joern, the law guardian, suggests that is exactly what Judge Maney did. Ms. Joern said the judge ordered the only remedy before him - Ritalin - and left the door wide open for the parents to suggest another medically approved alternative.
Courts Reluctant Lucia Whisenand, an attorney in Syracuse and former chairwoman of the New York State Bar Association's Children in the Law Committee, noted that courts, including the U.S. Supreme Court, are usually reluctant to intrude in matters of parental discretion.
Ms. Whisenand said the U.S. Supreme Court ruling on June 5 in Troxel v. Granville, a grandparents rights case, is illustrative. In Troxel, the Court reaffirmed the right of parents to raise their children without state interference, absent a showing of harm to the child. However, the divided Court did not clearly identify the appropriate standard for review in determining when an exercise of parental discretion results in the type of harm that can invoke government intervention.
"You have an obligation [as a parent] to provide appropriate food, shelter and medical care," Ms. Whisenand said. "The problem is, what's appropriate?"
Ms. Whisenand said absent "some pretty strong evidence that the child was at great risk if he didn't take the Ritalin," a court is "walking on some pretty thin ice" if it orders ingestion of the drug.
Overtreatment Possible There continues to be considerable debate over labeling of a child as ADHD-afflicted, and the efficacy of using Ritalin, and nagging concerns that behavioral problems are overly attributed to attention deficit/hyperactivity disorder and overly treated with methylphenidate, according to Karen S. Norlander, of Ruberti, Girvin & Ferlazzo PC in Albany, a former staff attorney with the State Department of Education and former general counsel to Statewide Youth Advocacy.
"You have groups that will absolutely swear by Ritalin and you have groups, including the medical profession, that raise serious questions about any kind of drug for children and the long-term effects," said Ms. Norlander, who is also a former law guardian and 18-B attorney in Family Court, and is now of counsel to a firm that focuses on education law, children and family law.
She said it is "very troubling" for the judicial system to become entangled in the debate, but acknowledges that circumstances often require judges, particularly in family law matters, to delve into areas that some would consider out of judicial bounds.
With the Kyle Carroll case, there is no record from which to seek review by a higher court, and with the consent ACOD, nothing to appeal. So the propriety of Judge Maney's decision will apparently go unreviewed, while the debate over what he did, did not do, should have done or should not have done continues.
Meanwhile, a handful of other cases in which schools are attempting to employ judicial clout to compel use of Ritalin are pending.