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HIV/AIDS Clinic Highlights

Tuesday, January 15, 2008  
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Students, clients and faculty of the HIV/AIDS clinic worked together to respond to a ruling by the D.C. Court of Appeals that non-parents had no standing to seek custody of children in the District of Columbia.  Their efforts, together with those of colleagues at The Legal Aid Society of D.C. and The Children’s Law Center, led to enactment of the Safe and Stable Homes for Children and Youth Act of 2007.

Michelle MoyeNon-parents have long stepped forward to care for children in the District of Columbia whose parents were unable to do so and to keep children out of the foster care system.  Indeed, for more than a decade, the HIV/AIDS clinic has supported families who seek to make long-term custodial plans for children of HIV+ parents by representing those parents or their relatives or friends in transferring custody of the children.   The Court of Appeals decision meant that non-parents – grandmothers, aunts, uncles, other relatives, and family friends – were unable to gain the legal authority often needed to consent to medical care for a child, enroll a child in school, or protect a child from an unstable or unfit parent.

Thus, students took up the charge immediately upon issuance of the Court of Appeals decision.  On September 1, 2006, the day after issuance of the opinion, students Audrey Orteza and Michelle Moye successfully argued in the Superior Court that the Court of Appeals opinion allowed for an award of temporary custody under emergency circumstances.  Orteza and Moye subsequently returned to the courthouse a few weeks later to argue on behalf of a different caretaker, and again persuaded a trial judge that the emergency nature of the circumstances and a careful reading of the Court of Appeals opinion permitted an award of custody to their client.  Melisha SoudersStudents Sarah Tomkins and Kathy Savoy assisted Professor Matthew Fraidin in filing an amicus brief on behalf of the clinic itself, as well as the Consortium for Child Welfare and the Family Ties Project, supporting reconsideration of the Court’s opinion.  Savoy also assisted Adjunct Professor Stephen Mercer, who submitted a separate amicus brief on behalf of an individual client.

Throughout the fall, as well as the spring and summer of 2007, students supervised by Fraidin, Professor Joyce Batipps, and Adjunct Professor Donna Wulkan, including Shanice Adams, Emmanuel Agbara, Joseph Carroll, Robert Leone, Heather Molina, Michelle Moye, Katherine Nonas, Wayne Turner, Elnur Veliev and John White continued to represent grandparents and other third parties seeking custody in Superior Court.  Supervised by Professor Batipps, student Turner represented a mother whose illnesses rendered her unable to provide care for her children, and who fervently wanted her relatives to gain legal authority to do so.  The children are living happily with the guardians their mother chose for them and are in safe and supportive homes.

Tom CowperthwaiteStudents Melisha Souders, Tom Cowperthwaite and John White fervently assisted a client with HIV/AIDS in preparation for his Social Security disability hearing. The client’s disability claim was denied twice and the hearing was the only opportunity he had to have his "day in court.”  While he prevailed at the hearing, the three year ordeal from start to finish took its toll on this very independent man, who had to live off of the kindness of his friends to survive over the years.

Professor Batipps made her annual presentations to the Family Medical Counseling Service and R.I.G.H.T., Inc., two non-profit organizations that provide services to individuals with HIV/AIDS.  She shared information about Social Security disability programs and spoke of the various services that the HIV/AIDS Legal Clinic provides, such as the drafting of advance directives and legal assistance with family matters.  Professor Batipps was also a member of the faculty for the D.C. Bar Pro Bono Program on Social Security disability programs. The Bar provides an annual training for area attorneys who will volunteer their services to indigent District of Columbia residents who are seeking assistance with disability claims.

The clinic also took on representation of a client, Bessie Lee Lewis, who is not HIV+, but whose circumstances tragically illuminated the crisis caused by the Court of Appeals opinion.  Profiled by Arthur Delaney, Jr., in the Washington City Paper, Ms. Lewis had cared for her 11 year old great-grandson for all of his life.  Seeking financial support for the first time, Ms. Lewis filed for custody of her great-grandson.  Before the claim was heard, however, the child’s mother traveled from her home in North Carolina to Ms. Lewis’ home in the District of Columbia, and forcibly removed the child from the city.  Because of the Court of Appeals ruling, Ms. Lewis was without a legal remedy and could not seek a court order directing that the child be returned to his home.  After the City Paper story appeared, Professor Fraidin was interviewed on WETA-FM to discuss Ms. Lewis’ situation and the broader impact of the Court of Appeals decision.

One month later, on January 9, 2007, Councilmember Tommy Wells introduced the Safe and Stable Homes for Children and Youth Act of 2007 as his first piece of legislation as a member of the Council.  Wells’ Committee on Human Services held a hearing on the bill February 8, 2007.

Students Savoy, Tomkins, and Orteza, as well as Molina, worked closely with ten clinic clients who signed sworn statements and testified at the hearing about the wide variety of circumstances that had led them to become "kinship caregivers” of a relative’s child or children.  The clients —grandmothers, aunts and cousins of children whose parents were unable to care for them — testified movingly that they had been fortunate to have the opportunity to provide love and stability to the children, and urged the Council to enact legislation that would permit others to do so in the future.  Councilman Wells expressed gratitude to the clinic’s clients for their testimony, deeply impressed by their candid, forceful stories.  Professor Fraidin also underscored the need for legislative action in written and oral testimony to the Committee, and Professor Joe Tulman of the law school’s Juvenile and Special Education Clinic submitted a letter to the Committee.

The Council voted unanimously on June 21 in support of a revised version of the bill, which was signed by the Mayor on July 9.  According to Councilman Wells, "by restoring legal standing to . . . caregivers in custody proceedings, while protecting the rights of parents, this bill will enable more children to live in safe and stable homes.”  Councilmember Phil Mendelson, Chair of the Committee on Public Safety and the Judiciary, commented, "We’ve struck the appropriate balance between protecting parents’ rights and recognizing the vital role that grandparents and other caregivers play in the lives of our District youth.”

The Clinic is following up its legislative efforts in a variety of ways.  Students continue to represent dozens of parents and kinship caregivers whose families are affected by HIV/AIDS.  The enactment of the Safe and Stable Homes Act permits these parents and caregivers to ensure that children of parents with HIV/AIDS will continue to receive education, health care, and the love and support of family members, even as the parents fall ill or die.  In addition, students Joseph Carroll and Heather Molina completed lengthy research papers on the subject of third-party custodians’ rights.  Professor Fraidin, who addressed a February 12, 2007 symposium sponsored by American University’s Washington College of Law, "Unmarried With Children . . . ”, is completing a law review article titled "Reasonable Efforts to Prevent Placement of Children in Foster Care."

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