NBC Philadelphia has the story; the New Jersey appellate decision itself is here. This family first made the news in Fall 2008, when a bakery refused to write the child’s name on his birthday cake. The appellate court held that the parents shouldn’t regain custody of the children, because of various abuse; the Nazi sympathies get no mention. The court also holds that “evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children.”
Thanks to Prof. Jared Williams for the pointer.
Dilan Esper says:
Are we allowed to refer to this child as the “Hitler Youth”?
August 5, 2010, 6:08 pmMaistre says:
Best blog post title ever!
August 5, 2010, 6:12 pmPeter says:
If anybody actually believes the political beliefs of these parents and the judiciary didn’t have an impact I got a bridge to sell you.
August 5, 2010, 6:23 pmGodlose says:
Had he been a girl, Jen O. Syde?
August 5, 2010, 6:31 pmanonymous says:
Sadly, the daughters’ names are “JoyceLynn Aryan Nation Campbell” and “Honszlynn Hinler Jeannie Campbell”
August 5, 2010, 6:40 pmhigh stakes says:
Wonder if anyone’s named Vlad M. Paler? And might he have an ottoman?
August 5, 2010, 6:52 pmJR says:
Max Power! He’s the man whose name you’d love to touch! But you mustn’t touch it! His name sounds good in your ear! But when you say it you mustn’t fear, because his name can be said by anyooooooone!
August 5, 2010, 7:00 pmChris Travers says:
Why does this not surprise me?
August 5, 2010, 7:17 pmmovietone says:
How soon will last century be relegated to
August 5, 2010, 7:28 pmmoldy textbooksdusty CD-ROMS, and storeclerks won’t know the diff?Sk says:
Clearly absurd, but I’ll pretend to discuss the legal implications of the case as if they matter.
“…evidence of prior domestic violence committed by defendant-father against his ex-wife and the two children of a prior marriage was admissible in this case to prove the risk of harm to these children…”
Is it really the case in New Jersey that if you commit domestic violence, you will have future children (it appears from the pictures, that this must be occurring at least 7 years after the initial domestic violence-the new children appear in the 6-10 year old age range), with a future wife, with no evidence of new domestic violence, seized by the State?
It appears that the judiciary is bending the law to suit its personal political preference. There’s alot of that happening today…
Sk
August 5, 2010, 7:30 pmyankev says:
There is no truth to the rumor that the foster parents have named him Andrew Semite, nor as to what nickname they use for Andrew.
August 5, 2010, 7:31 pmSuzanne says:
Good decision, but shouldn’t an appellate court address those appellations?
August 5, 2010, 7:34 pmSuzanne says:
Yo, Semite!
August 5, 2010, 7:36 pmSuperSkeptic says:
I’d be too ashamed of myself to joke about this actually. What a shame…
August 5, 2010, 7:36 pmJosh Bornstein says:
If it were a girl, I guess that, eventually, she’d be an “Auntie” Semite.
———————————
SK,
August 5, 2010, 7:43 pmIs it really true that there was NO evidence of new DV? I read the opinion, and I gather that there were plenty of facts that suggested recent DV. Did you read the entire opinion? Just to name a few things: The injury to the mother; the testimony of the neighbor re overheard statements. Not the world’s most overwhelming evidence, I concede. But that’s a far cry from no evidence, and as such, I don’t think your criticism applies here.
Chris Travers says:
That’s a good point. I would have preferred a more narrow reason for inclusion: the fact that the ex-wife’s testimony had strong substantive parallels to known facts at issue. In other words, I don’t think that the evidence should be routinely admitted, but when she says that he nailed windows shut and they also see windows nailed shut at present, that’s further evidence of a continuing pattern. To me that suggests more probative than prejudicial.
August 5, 2010, 7:47 pmSuperSkeptic says:
Perhaps it is a continuing pattern of some sort, but that’s not what the Court ruled on the 404(b) evidence anyway. They overruled the lower court and basically admitted it under 404(b) by buttressing their conclusion that it wasn’t propensity evidence outweighed by prejudice under the Cofield precedent (a four factor test – see opinion at 26) with two statutes (both of which seem to be not quite on point).
The first statute is N.J.S.A. 9:6-8.46a, which “states that ‘proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or
neglect of any other child of . . . the parent or guardian.’ ” opinion at 28.
The second is “The Prevention of Domestic Violence Act, N.J.S.A.
2C:25-17 to -35 (Domestic Violence Act), [which] explicitly provides
that the history of abuse in the same relationship is admissible
to prove the current domestic violence alleged.” opinion at 29.
So, it seems to me that the court stretched to find inadmissible 404(b) evidence admissible to get a contrary result, which happens to be taking children away from people who perhaps shouldn’t have them and are abusing them. I think the lower judge (quoted on page 24) accurately described the 404(b) evidence (the testimony of the father’s ex-wife regarding abuse to her) and made the right legal call at the time as to the admissibility of that particular evidence.
[As an afterthought - we really seem to be eating away at the anti-prior bad act rule in a wider and wider variety of cases. I've never been too fond of excluding such overly logically relevant evidence, but I understand completely why we do. Is there anybody writing out there now who has put a lot of thought into this issue? Could someone direct me to it?]
August 5, 2010, 8:11 pmSuperSkeptic says:
But there was new evidence of domestic violence against the new/future wife in this case. She was (audio) taped by the neighbor during their fights and also passed a note to the neighbor to the effect that if she was found dead the authorities should conduct an autopsy because the father or his friends would be responsible. She backed away from all these things, of course, but they were presented.
The panel doing the reversing here did overly rely on the experts though…so it is not clear to me that your concern is entirely unfounded…
August 5, 2010, 8:22 pmGeorge says:
Does anyone really believe that the court ignored the Hitler issue? The court went fishing for some non-Hitler reasoning, so it would not be accused of punishing parents for their naming choices.
August 5, 2010, 9:01 pmFub says:
What’s most disturbing, though not mentioned in the appellate case, is that the lower court slapped a gag order on the parents in the initial case, apparently at behest of NJ DYFS.
If the DFYS did no wrong, they what are they afraid the parents will say?
August 5, 2010, 9:06 pmChris Travers says:
I’m going to add to this that there is generally a strong presumption that the male is guilty in DV situations although this is (slowly, thankfully) subsiding. This is despite evidence that DV shows no substantial gender gap in actual incidence rates.
Add to this that sometimes such claims are manufactured and you have the possibility of a real problem.
August 5, 2010, 9:17 pmJK says:
Possible, but it also seems possible that parents who named their child Hitler might also have some other problems. I got the impression from another article that they aren’t really ideological Nazis just borderline retarded mentally ill people.
August 5, 2010, 10:10 pmNickM says:
Something beginning with Sieg Heil?
Nick
August 5, 2010, 10:26 pmSoronel Haetir says:
Now that’s irony, idolizing a belief system that would either kill you outright or treat you worse than the social structure you are now part of.
August 5, 2010, 10:32 pmEH says:
Eh, they probably just thought it would be funny, or profound.
August 5, 2010, 10:46 pmArthur Kirkland says:
Exactly! Who among us hasn’t accidentally stabbed a spouse with a screwdriver? (Especially if you are constantly in the toolbox, getting what is needed to nail shut the house’s windows.) Plus, if you love your spouse enough to forbid any unattended departure from the house, the chances of accidental screwdriver-through-the-hands incident probably increase substantially, because there is more close spousal interaction. Why do these government do-gooders dislike close spousal interaction?
August 5, 2010, 10:47 pmSk says:
Hmmm-
After having read bits of the decision itself, I have to admit that I was wrong to be so glaringly cynical about the finding of the court. I didn’t read all 49 pages, but read enough to grant that the court’s finding was at least defensible.
In my own defense, the NBC Philadelphia article was the most misleading article I have ever read in the mainstream media.
sk
August 5, 2010, 11:30 pmChris Travers says:
Let me frame the problem differently. During part of 1996 and 1997 I was the victim of a campaign of domestic violence at the hands of my girlfriend whom I was living with at the time. She’d accuse me of all sorts of things I didn’t do. She would threaten me with knives several times a week, or assault me with blunt objects. Often immediately after the assaults she would hurt herself so she would be visibly more bruised than I was. Had I called the police, I am sure they would have arrested me. So imagine at the moment that this is what had happened and I had been arrested on such grounds.
The problem I have here with this ruling is that if I had been stupid enough to call the police and hence get arrested, then if there was any complaint of any concern, then one trumped up complaint would be evidence in another. If there is a categorical rule that evidence of past abuse is submitted as evidence of present abuse, this becomes a very dangerous cycle very quickly.
In this specific case, I think the evidence should have been included not under a broad rule but because it is clear that the testimony of the ex-wife bore substantial and material similarity and thus were quite clearly probative. In other words, of the 4-part test, each part should have been interpreted a bit more strictly. This would limit the damage here but allow the evidence to be used in this specific case only because it’s clearly relevant and probative.
August 6, 2010, 12:06 amCockleCove says:
Having represented parents in child abuse and neglect proceedings in New York, I offer some observations/comments:
** I agree that the court’s reliance on the Domestic Violence Act is makeweight. But, I’m surprised that SuperSkeptic doesn’t see NJSA 9:6–8.46a as squarely on point — and that the court felt obliged to discuss 404(b) at such length. The holding (Opinion at 28)
that in civil proceedings for the protection of a child, a parent or guardian’s past conduct can be relevant and admissible in determining risk of harm to the child. N.J.S.A. 9:6-8.46a states that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent or guardian.” Thus, the statute itself provides for admissibility of evidence about other children [citations omitted].
doesn’t strike me as a stretch requiring lengthy exegesis.
** The reversal of the lower court’s order does not mean that the children now will be “taken away” from the parents. This proceeding was not initiated by DYFS to terminate the father’s and mother’s parental rights, the fundamental prerequisite to adoption: “We reverse and hold that DYFS proved the need for protective services for these children” (Opinion at 2-3) and “remand for a dispositional hearing under N.J.S.A. 9:6-8.45″ (Opinion at 49).
A parent may have custody of children who have been adjudicated as abused or neglected, although these children doubtlessly will remain in foster care for the foreseeable future. Even so, the goal is reunification of the family which DYFS will seek to facilitate via, e.g., frequent, regularly scheduled visitation and counseling services.
** The burden of proof in a neglect/abuse fact-finding hearing is minimal: that a child is abused or neglected need only be proven by a preponderance of the evidence (Opinion at 43). DYFS and the children’s law guardian presented a raft of testimony and other evidence, including the parents’ refusal to permit the 2 older children to receive therapy for their developmental delays & the certificate establishing the father’s criminal conviction — by his plea of guilty — of “terroristic threats” against the ex-wife who testified at the fact-finding hearing. The only evidence adduced by the parents was the often far-fetched testimony of the mother.
In New York, the fact-finding court may draw (and often does) an adverse inference from a parent’s failure to take the stand at the hearing. I assume this is not the law in New Jersey since the appellate court’s opinion is silent on that. This dad, however, didn’t show up for even 1 of the 7 fact-finding sessions, which doesn’t bode well for his future re: the preventive services to come.
** In my experience, the fact-finding judges and the appellate courts generally have great respect for the law guardians (now known in NY as the attorney for the child). I don’t consider this case to be a close one, but if it were, the staunchly adverse stance of the law guardian would be of grave concern to me as defense counsel on appeal.
August 6, 2010, 4:48 amCockleCove says:
As evidenced by the initials in the case caption on the appellate court’s opinion and the fact that the court does not refer to the children, the parents, the ex-wife or neighbor by name, child protective proceedings are confidential. One of the reasons for that policy is to maintain the anonymity of children, who may be stigmatized if their identity as subjects of child abuse investigations/proceedings becomes known.
My Google search indicates that the indignant parents were the ones who first called the media’s attention to the local Shoprite store’s refusal to put Adolf’s name on the birthday cake. I’d be willing to bet that the parents initiated the news accounts of DYFS’s subsequent removal of the children from home; surely neither DYFS nor the police was the source of the family videotapes that accompanied the TV reports of the removal. So I see nothing untoward in the family court’s issuance of a gag order under these circumstances.
For all we know, the gag order may be directed against DYFS as well, although I wouldn’t think that necessary. The court files in this case aren’t open to public examination; we learned of the gag order only because the mother announced she was violating it in order to draw attention to her plight. If the gag order did apply to all parties, do you think she would revealed that fact? It would undercut her portrayal of her husband and herself as victims of “the system”.
August 6, 2010, 5:58 amJay says:
Do you have a cite for there being no gap in rates of commission of DV between men and women? I suspect that, if true, it’s from some kind of “men’s rights group” and based on an exceptionally broad definition of DV to include verbal abuse or the like, rather than actual criminal acts. I’m not saying that women are always innocent victims and men can’t be, but biology would seem to dictate that physical danger is going to run in one direction most of the time.
August 6, 2010, 6:38 amJay says:
But it failed, because you, George, discerned the truth!
August 6, 2010, 6:40 amkarrde says:
My understanding is that what data exists is of a sketchy, hard-to-verify nature.
Somewhat like divorce law, DV law seems slanted against men. Both law and society automatically assume that the male partner is at fault in a DV case.
This doesn’t mean that the male is never at fault, nor does it mean that it is safe to assume otherwise (just to go against the grain). But it does mean that there is a large risk of confirmation bias.
Thus, we can’t answer the question, unless we’ve got some really good data.
August 6, 2010, 7:47 amFrank Drackman says:
Hey at least the kids name wasn’t “Mike Hunt”
August 6, 2010, 8:30 amSuperSkeptic says:
I’ll concede that it is less of a makeweight than the other statute, but I just don’t see it that way, when looking at the whole situation, particularly the structure of the panel’s entire decision. I would again refer you to the lower court judge’s description of the ex-wife’s testimony on 24.
August 6, 2010, 9:32 amLugo says:
August 6, 2010, 10:02 amHelen Thomas already has that covered.
Rob Berra says:
I call threadwinner for Dilan!
August 6, 2010, 10:09 amDJR says:
The rule is that prior acts are admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake. The reason for the prohibition is to avoid the prejudice of “he did it before, so he probably did it again.” The exceptions do not use the evidence in that way. For example, If defendant says he was carrying around a crowbar, hammer, mask, gloves, and bag not to commit a burglary, but because he was going to help a friend move a rock and thought it might get cold, his prior burglaries are probative of his likely motive.
The opinion basically adds “risk” to the exceptions. The court points out that you can only judge risk of future bad behavior by past performance. It would be a strange rule if the court could not consider, when determining whether a person is dangerous to children, whether he has a recent history of child abuse. Does this mean that someone convicted of child or spousal abuse can never keep any subsequent children? Not necessarily. The evidence is relevant and admissible but need not be dispositive. It might make the Court look more closely at these cases, which doesn’t seem like a bad thing to me.
August 6, 2010, 10:16 amRodger Lodger says:
I’ve never seen “non-Hitler” before.
August 6, 2010, 10:39 amSuperSkeptic says:
DJR,
I realize that the exceptions do not use the evidence for propensity, but I think we all realize that that is largely a fiction in many, many cases. Like you say, the judges basically add to the “exceptions” here. It doesn’t seem like too bad of a thing to me either – in this case. But, the purpose of my afterthought was to wonder if anyone had more thoroughly thought out the implications of what I perceive to be a trend away from the general rule and a more robust expansion of the exceptions. Or, perhaps if there is a noted trend in what type of cases in which we seem most likely to abate the rule, e.g., abuse of children seems to be one of the most prominent. If my raw speculation has any merit, I suspect we are most likely to abate the general rule in highly sensitive areas – those same areas where it might make the most sense to actually have the rule in the first place. This, I think, is a quite interesting course of events, and I wonder if there are those who have put more thoughts on paper regarding the rule and its evolution.
August 6, 2010, 10:57 amSuperSkeptic says:
Moreover, this seems to be an exceptionally transparent “exception” to the rule. It flatly turns the rule on its head. “Risk” of committing the act *is* propensity evidence. (Then again, there was some statutory basis here…)
August 6, 2010, 11:08 amFrank Drackman says:
Remember that “Hill Street Blues” Episode where there was this great Stand Up Comedian, great material, sure to be the next umm I guess it would have been Eddie Murphy back then, and he was just about to land a big contract when they found out his name was “Vic Hitler”…
August 6, 2010, 11:30 amand he wouldn’t change it…
DJR says:
I disagree. The prohibition is on using prior bad acts to prove action in conformity therewith. Here, the prior acts are not used to prove that he acted in conformity therewith — they are used to show the risk of action in conformity with the prior bad act. The court at times describes the rule as “the forbidden inference of propensity or predisposition,” but that is not what the rule says.
August 6, 2010, 11:58 amSuperSkeptic says:
This is a distinction without a difference. It’s simply the same thing.
August 6, 2010, 12:06 pmjmaie says:
Jay: Do you have a cite for there being no gap in rates of commission of DV between men and women?I suspect that, if true, it’s from some kind of “men’s rights group” and based on an exceptionally broad definition of DV…
I’m guessing the injury rate is worse for women regardless whether the incident rate for each gender is close.
August 6, 2010, 12:13 pmDG says:
“Exactly! Who among us hasn’t accidentally stabbed a spouse with a screwdriver?”
Accidentally? Dude, she was ASKING for it! First, she said she preferred “Himmler” as a middle name over “Alois”, then she said that Gypsies were as bad as Jews, when everyone knows that they are only 97% as bad.
Right?
August 6, 2010, 12:25 pmDJR says:
The risk that something will happen in the future is the same as that thing actually happening? How can that be? My cholesterol count establishes, to some extent, the risk that I might have a heart attack. It says nothing whatsoever about whether I have had a heart attack.
Proving someone committed a crime and should be subject to the State’s power to incarcerate is and should be much more difficult than proving that some prophylactic measure should be taken to prevent future harm. You should have to prove more to put someone away for child molestation than you have to prove to order only supervised visits.
August 6, 2010, 12:39 pmJustin the Part Time Lawyer says:
The justices were probably looking at Buck v. Bell with wistful thinking after this case.
What is the Nazi connotation of “Honszlynn Hinler”
Were they trying to spell Himmler?
It is somewhat ironic that Hitler’s ideas of the “master race” include these geniuses and they would have probably been euthanized by the state shortly after birth.
August 6, 2010, 1:15 pmFub says:
I understand the usual reasoning, but it’s too often trotted out as generic CYA for official incompetence or downright wrongdoing, which appears to thrive in many state “child and family protective service” agencies.
“It’s for the children” is one of today’s top ten refuges for scoundrels.
Gag orders effectively prohibit parents’ garnering public support against government abuse of them or their children. Sunlight would reveal either the government abuse, or the parents’ false accusation of it.
Today some adults are going public about abuses they and their parents suffered at the hands of corrupt or incompetent “child and family protective” agencies. Gag orders issued gratuitously on generic “for the children” grounds ensure a never-ending supply — always too late to actually protect children from abuse at the hands of the state.
August 6, 2010, 1:24 pmSuperSkeptic says:
I imagine that they were. And as to the first name, I suspect it is a misspelled variant of “Hohenzollern.”
http://en.wikipedia.org/wiki/Hohenzollern
* * *
What you state here isn’t quite what is happening. What is happening is that the fact that someone has done something in the past is being used to asses the “risk” of them likely doing it in the future, i.e., the fact that someone has done something in the past is being used to determine the the likelihood of whether that has occurred this time (the future is now!). That is the definition of propensity evidence and what the rule is all about.
August 6, 2010, 1:26 pmChris Travers says:
Talking specifically about physical assaults. Here’s one source. This study actually showed higher rates of both verbal aggression and physical violence by women. Of course, a slap to the face is an act of minor violence and reported as such, but women were more likely to kick/bite/punch, hit with an object, or threaten with (or use!) a knife or a gun, than a man. Men were more likely to “beat up” or “choke” their partner. The difference in type of violence (threats with weapons, attacks with blunt objects vs beatings and chokings) may account for the difference in injury rates, but also calls into question the “battered woman defence” when a woman shoots her husband.
It is true that injury rates are higher for women.
August 6, 2010, 1:55 pmr gould-saltman says:
From the family law (and abuse/neglect/dependency court)standpoint, the question is not whether the parents have a protected constitutional right to indulge in public jack-assery, but whether their continued (and already demonstrated) insistence on using their children as a tool for their continued public jack-assery (I’m guessing three-year old Adolph neither demanded that the bakery put his middle name on the cake, nor called the newspapers when they wouldn’t…) should be considered in addressing their custodial rights. This, rather than some nefarious black-helicopter conspiracy, also probably explains any “gag order”
August 6, 2010, 2:55 pmAlex Ess says:
Well, I, for one, am glad the court’s decision wasn’t based on the name issue; and so is my son, Ted Bundy Ess.
“Hinler”?
August 6, 2010, 3:45 pmA.W. says:
off topic, a little, but i think maybe the dutch have the right view on this. You have to get state approval of your name. Or maybe we just need to limit that rule to celebrities.
Right now there is a boy growing up as the son of Nick Cage named Kal-El. kal-el, of course, is superman’s kryptonian name. this child will almost assuredly repeated beatings as a result and thus suffer a crippling social handicap throughout his life. The dutch scheme might have prevented that.
Okay i am being a little tongue-in-cheek, and maybe i am falling into the “there ought to be a law” syndrome, but… maybe there ought to be a law.
August 6, 2010, 4:16 pmDan Hamilton says:
A boy named “Adolf Hilter”.
A boy named “Sue”.
“Sue” is worse.
August 6, 2010, 6:51 pmChris Travers says:
I once knew a girl named “Hee”
That was confusing.
August 6, 2010, 7:02 pmMatt Lynch says:
The headline in “the daily Trentonian” today was “lil’ Hitler can’t go home.” That combined with the picture was priceless. It made working for the NJ AG’s office this summer absolutely worth it.
August 6, 2010, 8:27 pmChris Travers says:
Here is the referenced article to save people the trouble of looking for it.
August 6, 2010, 8:46 pmHit Coffee » Why little Adolf Hitler is staying in foster care. says:
[...] reading the appellate opinion in the Adolf Hitler Campell case (available here, courtesy of the Volokh Conspiracy), I’m convinced that nothing happened to these parents that doesn’t happen to thousands [...]
August 8, 2010, 4:22 pmryankerri says:
This is so sad for the children. Seriously. I actually know the foster family and have met with “Adolf”. His “nickname” is NOT Andrew, as I have read in some previous posts. But he DOES accept and respond to it well, and it seems natural to him. Thankfully. He is with a family who loves and cares for him very much. He is a sweet boy, but also carries much anger and bitterness; as well as a blatant disregard for women, for such a small child. Yet, he is also a very loving boy with a beautiful smile, who thrives on postive reinforcement and lots of one on one attention. I think a lot of people are focusing on the parents right to freedom,but are forgetting that this is moreimportantly a real issue, involving a REAL child with a REAL future to grow and live with. Sure, he can change his name at 18, but what about NOW? what about the next 14 years?
August 12, 2010, 10:27 am