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Burden of Proof

Mother of 6-Year-Old Alleged Killer Strikes Custody Deal with Prosecutors

Aired May 3, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

ARTHUR BUSCH, GENESEE COUNTY MICHIGAN: This defendant was grossly negligent in allowing the little boy to get a loaded pistol.

SHERIFF ROBERT PICKELL, GENESEE COUNTY, MICHIGAN: I want him charged in juvenile court, and I want the courts to take control of this kid's life so he can't hurt other kids, and not put him back into a general school population.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Two months after a deadly first-grade shooting in Michigan, the mother of the 6- year-old alleged killer fights for custody of her children and strikes a deal with prosecutors.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF.

This morning in Flint, Michigan, Tamarla Owens was in court fighting for custody of her three children. On February 29, her 6- year-old son allegedly shot and killed classmate Kayla Rolland in their first-grade class. Since then, the boy and his siblings have lived with their aunt.

GRETA VAN SUSTEREN, CO-HOST: According to prosecutors, a probate judge has accepted a deal which could return custody to Owens, provided she undergo psychological testing, substance abuse counseling, and attend parenting classes. The children will remain living with their aunt, for now.

COSSACK: Joining us today from Detroit is Lisa Halushka, a lawyer who specializes in juvenile law. Here in Washington, Susan Marlowe (ph), general counsel of the Washington D.C. Public Defender's Office Ron Sullivan, and child custody law professor Nancy Polikoff.

VAN SUSTEREN: In our back row, Stephanie Luo (ph) and Shane Marlowe (ph). And also joining us on the phone is the lawyer for Tamarla Owens, Michael Celement -- Mark Clement.

Mark, let me go first to you. Why was the young boy not living with his mother at the time the shooting occurred?

MARK CLEMENT, ATTORNEY FOR TAMARLA OWENS: Well, at the time of the shooting, the mother had been evicted from her home and she had to move into another home with a sister. And she placed the two children at the home of her brother so that they could continue to attend the same school that they were attending, it was a block or so away from the school, the home that they were placed in. And they had only been there a week, mind you, before this...

VAN SUSTEREN: Could she not have taken them with her to the home she went to?

CLEMENT: That was an option, she could have taken them to that home. However, she would have had to transfer their school. You have to understand, I mean, she was evicted on day one. On day two, she had to be to work. She worked, you know, a substantial distance from where we live, an hour there and an hour back by bus, and the children had to be in school the next day. There was not a lot of time for her. So she would have had to transfer their school, and she didn't expect the children to be there much more than a week or two until she secured other housing in the school district that they had been in.

COSSACK: Mark, what was the deal that was struck today?

CLEMENT: Mother consented, Tamarla consented to the jurisdiction of the court basically on a theory of non-culpable neglect, which basically is a way of saying that, in hindsight, I guess the house that the children were in was probably not unfit, although there was a specific finding that she did not know it was unfit at the time. It is sort of a hindsight type of theory, where we now know it was an unfit home. However, at the time, she did not know it. Specifically in the case of nonculpable neglect.

COSSACK: All right, now what happens? It seems to me that that is sort of an easy way for parties to come together, and the mother says: Look, I didn't know it was bad, apparently it was. What happens in the future now?

CLEMENT: Well, they are going to -- she's going to be reunited with her children, it is just a matter of when. She is going to go through very standard things that every mother in this situation would go through, and the children will get a wide variety of services that really aren't available at this time.

COSSACK: Like exactly what is she going to go through, what services will she receive to perhaps improve her mothering skills?

CLEMENT: They have...

VAN SUSTEREN: Mark, can I interrupt for one second? Is the questioning her motherly skills or is the question whether or not she should have place the child in the residence where the child found the gun?

CLEMENT: Well, I guess there are two questions on the table now, and I'm not sure which one to answer. Specifically what they have in Genesee County in the city of Flint, they have what are called life skills classes. It -- Probably 99 percent of the mothers and children that come within the jurisdiction of the court go through what is called a life skills class. There are several components. She will be evaluated, first, to determine whether she really needs any of these things, and I'm confident they will determine that she won't. But nevertheless, at this point in time, there will be a lot of evaluations to see what, in fact, she does or does not need.

COSSACK: What are life skill classes?

CLEMENT: Those are classes that are put on by the county, where a mother attends, I have never actually attended one, but they will go into various mothering skills. Some of them very, very basic because there is such a variety of necessities that people that enter those classes need, and they look at that, and they determine what they need. It could be all the way from how to change a diaper, all the way up to how to deal with some of the more complex issues with regard to raising children, and relating to children.

VAN SUSTEREN: Lisa, let me go to you. What is your reaction to the agreement? It is obvious that the parental rights were not terminated this morning, that there has been some sort of temporary agreement. What is your reaction?

LISA HALUSHKA, JUVENILE LAW ATTORNEY: Well, I think it sounds like a very fair reaction and probably what serves the best of the kids. In Michigan, there is two ways that the court can take jurisdiction over children, the first way is on a request to actually terminate the parental rights. And the other way is for the court to take temporary jurisdiction, and that's with a mind's eye towards ultimately reuniting the children with the parents, and in the meantime, addressing those things that the parents must have been deficient in for the court to become involved in the first place.

VAN SUSTEREN: What would it take to terminate? I mean what's the standard to terminate the parental rights?

HALUSHKA: Well, the standard of proof is by clear and convincing evidence, but what you need to show is that there's some really egregious form of abuse or neglect, we are talking about serious sexual abuse, physical abuse where the child has actually suffered some sort of substantial injury or there is some ongoing long-term previously adjudicated neglect that hasn't been rectified.

VAN SUSTEREN: Nancy, you teach up at A.U.'s law school, you have been teaching in this field, is that standard pretty much the standard in each state or does it vary?

NANCY POLIKOFF, CHILD CUSTODY LAW PROFESSOR: It would vary a little bit, but pretty much there would be some kind of unfitness of the parent that had to be shown by clear and convincing evidence before you could terminate parental rights. And the state is supposed to try to reunite the children with the parents, termination of parental rights being quite an extreme thing to do with a family.

COSSACK: Lisa, when you talk about neglect of a child, I mean this is a terrible fact situation that occurred here, and when you have something like this where a child gets a hold of a weapon, and a terrible event happens, I mean how much more neglect do you need than that?

HALUSHKA: Well, I agree with you that's pretty serious because we, as parents, are ultimately responsible for the care and custody of our children, and although mother may not have been in that home she assumes the responsibility for where she places her children, and the environment that they find themselves in. So, I agree with you, I mean this particular child wasn't seriously harmed or seriously injured, but the act that he was involved in, apparently as a direct result of the environment that he was placed in, certainly makes mother culpable in my view.

VAN SUSTEREN: We are going to take a break. When we come back, in a custody dispute, in general, what factors should determine neglect? and how do attorneys argue against it? Stay with us.

(BEGIN LEGAL BRIEF)

An attorney running for Boulder County D.A. says if he's elected, he'll make arrests in the JonBenet Ramsey case.

Candidate Ben Thompson has hired former Boulder detective Steve Thomas as a consultant on his campaign.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to CNN.com/Burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: The mother of a suspected first-grade shooter was in court this morning fighting for custody of her three children. Since the February 29 shooting in Flint, Michigan, Tamarla Owens' sister had been caring for the children. Two weeks ago, the 6-year- old boy accused of killing classmate Kayla Rolland started attending a special program at a home for neglected and abused children.

Ron, when we talk about issues of termination of parental rights or neglect, incredible amount of subjectivity in the law, is there not?

RON SULLIVAN, GENERAL COUNSEL, D.C. PUBLIC DEFENDER'S OFFICE: Absolutely. And that's why it's important in everything you do in that sort of representation, when you're representing the parent, is to indicate that reunification with the parent is in the best interest of the child. After all, the overarching considerations that the court employs in deciding these issues is what is in the best interest of the child. The parents are aided in that by two presumptions in our law. One presumption is that the natural parent should be the custodial parent. And the second is that, even if the state removes the child temporarily, the goal should be reunification of child with natural parent.

VAN SUSTEREN: Nancy, here we have a horrible situation: The child gets put at a relative's house where there's a gun, the child takes the gun, shoots a classmate. When you look at issues of neglect or termination of parental rights, do you look at one incident? I mean, here the mother apparently did this so the child could stay in a particular school. Can you look at one incident?

POLIKOFF: Normally you wouldn't look at one incident. You would focus on the child and the child's best interest and the child's relationship with the parent. There isn't anything, really, about what this child did, as dreadful as it was, that demonstrates that he isn't better off with his mother than with anybody else. In other words, if his mother's rights were terminated, he could go into a state care system, a foster care system, face the trauma of losing his family. That isn't necessarily best for the child even though he clearly needs some kind of assistance.

COSSACK: Lisa, if, in fact, the presumption is that the child should be back with his natural mother -- and in some ways, I suppose the child is blameless -- why is the child attending special class now?

HALUSHKA: Well, I was actually just thinking that when you were asking the last couple of questions, because I don't think that we can look at this isolated incident in a vacuum. Something also led this child to pick up the gun and to take the gun to school and actually to fire the weapon and kill Kayla. So there's got to be something else going on besides the fact that he was just placed in this home.

And I'd bet that if we were to look into this case with some more depth, we would discover that there were other neglect issues going on in the family or other neglect issues that were being discovered once he was removed from mother's care and our state family independence agency got involved. And so they determined, you know what? This child, for his best interest, needs the specialized program and needs it before he goes back home with mom.

VAN SUSTEREN: Mark, tell me about your client, the mother. How old is she, does she work, the extent of her education?

CLEMENT: She's 27 years old. She, at the time of this incident, was working two jobs. She was working -- she would take a bus from her home to the bus station downtown Flint, and then she would take another bus an hour south of here to a very well-to-do Oakland County where she would work one job. When she would complete that job, she would go across the mall, work at a second job, then get on the bus, take that bus back home, get on a second bus and take that bus back home. That's under the Work First program in Michigan that forces people to work so that they can receive any kind of assistance such as food stamps, Medicaid, things of that nature. That is what she did from day to day.

COSSACK: And, Mark, if that's true -- and I'm sure it is -- then what's going to change now? I mean, if she needed to do those things economically to be able to support herself and her children and was absent from the house for that, why will things be any different now?

CLEMENT: Specifically, now what's going to change for her is that the community in Flint is coming together and saying, this has got to change. She's not the only mother that has to do this. There are literally hundreds of mothers in this community that have to do this and it's becoming an issue in Michigan with regard to the Work First program, and they're asking the same questions now as you're asking: Why? Why does this mother have to do this?

I think it's ridiculous. I agree with you 100 percent, specifically with regard to Tamarla. She's going to -- she's got a lot of community support in this area; I mean, just an outpouring of support for her. I mean, specifically, you know, with regard to Tamarla, I don't think that she's going to have to continue in that kind of an employment situation. There've been a lot of offers on the table. That's great for Tamarla, but the hundreds of other mothers that are suffering in the same sort of situation, I hope that the situation changes. This is a systemic problem, not a specific problem with regard to Tamarla.

VAN SUSTEREN: Nancy, this is not a (OFF-MIKE)...

CLEMENT: It's -- could I -- I just want to interject one thing: There was never a request to terminate Tamarla...

POLIKOFF: No, it had always been made by a judge.

VAN SUSTEREN: And what's the thinking behind having a judge make it rather than, perhaps, you know, some citizens in the community?

POLIKOFF: We've never entrusted family law matters to a jury. We've always thought that the judge was best able to apply the appropriate standard.

VAN SUSTEREN: Why is a judge any better?

POLIKOFF: Well, I think the answer to that is more in our history than in -- I mean, I suppose we could dispute that, but historically family law matters were always decided by judges and not by jurors, and so it's thought that the judge is best able to do it.

COSSACK: Ron, in your practice in defending in these situations, I suppose it's not an unusual situation to find the kind of fact -- situation where we find today where a mother is neglectful but not because of willfulness but because she has to go all over to work different jobs to try and support her family. How do you present that to the court?

SULLIVAN: Well, you present it, actually, in much the same way that her attorney just did, that there is a systemic or an institutional problem as well, and then you present sort of alternatives: To the extent that my client's actions are deemed neglectful, then we will undertake to do the following in order to remedy this situation. Here, for example, is a grandmother, here is an aunt, or here is a neighbor who, for example, is not working, and this neighbor has agreed to watch over the child from, you know, 3:00 to 6:00 until I can get home. I don't know the specific facts in this case, but what you do is determine what the court's concerns are and then do everything you can do to remedy those concerns to make sure that the parent does what the parent really wants to do, and that's to be a good parent to the child.

COSSACK: All right, let's take a break.

Up next, crime at the hand of children: Should the parents bear legal responsibility? Stay with us.

(BEGIN Q&A)

Q: Why did a Los Angeles judge give a convicted bank robber just one year in prison?

A: The robber was paralyzed from the waste down after a police chase. The judge believed it was unlikely he could commit another crime.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: Recent school shootings have not only raised questions about the juvenile court system, but about the home life of child criminals and parental liability.

Nancy, let's talk about parental liability in these situations. This is obviously not a family that was, to say the least, overflowing with money. Should there be parental liability in this situation, in light of the fact the mother was out trying to earn a living?

POLIKOFF: Well, in this case, it also appears the mother was trying to put the child in an appropriate place that turned out not to be a good choice, given what we know happened. But if there's no reason for the mother to have believed this kind of thing would happen in that home, I don't see why she would be liable.

VAN SUSTEREN: Lisa, there is a charge pending in this case now, involuntary manslaughter against the resident of the home where the boy was staying, and where the gun was found. He faces involuntary manslaughter, July 11 trial. How does the prosecution prove that case? You are a former prosecutor.

HALUSHKA: Well, first of all, they've got to show that his actions were grossly negligent, and I still think you have to show some criminal mens raia (ph), that he realized that he was being grossly negligent and there has got to be some nexus between him leaving the gun in a place where this child could get access to it and then the child actually taking the gun to school and killing little Kayla. I don't think it is an insurmountable hurdle, but I think it's a difficult case.

VAN SUSTEREN: Boy, Ron, I would be a little bit nervous if I represent him, putting a gun in a place where a child could get it in a -- all right, boy, the mens raia wouldn't be that particularly hard, I don't think, for the prosecution...

SULLIVAN: You know, I think it's an interesting case for involuntary manslaughter, they have to show causality, they have to show that there's a gross deviation from reasonable care, and then they have to show that it -- that the conduct created an extreme risk. Now if the boy had injured himself in the house with a gun that's exposed, then I think a prosecutor could make that sort of case. But...

COSSACK: It was in a shoe box.

SULLIVAN: ... but it was in a shoe box...

COSSACK: The gun was in a shoe box.

SULLIVAN: ... and he -- the child got the gun out of the shoe box and into the school. The causality requirement is in the law, foreseeability requirement: it has to be reasonably foreseeable that your conduct could have led to the result.

VAN SUSTEREN: Let me play devil's advocate with you. You have a gun, you've got a 6-year-old kid, the kid has access to it, he's not a -- you know, he's six years old, he's not very mature, presumably. If he's going to pick up the gun, he's likely going to do something dangerous.

COSSACK: Don't you have to -- wouldn't you have to show that the child knew the gun was in the shoe box or would you just -- could you just take, I guess, your position which is...

VAN SUSTEREN: I think it is reasonably foreseeable.

COSSACK: ... that it almost speaks for itself, that a kid's going to be -- that you have something there and the child may be looking around.

SULLIVAN: You know, I think there are enough intervening events in this sort of case to get over the reasonably foreseeable requirement.

VAN SUSTEREN: You know what could be the big problem, though Ron, I think it depends on who your jury pool is. You get someone like me who is terrified of guns, and I think if you pick up a gun there's going to be a problem; you take someone who has lots of experience with guns who doesn't have that sort of fear of it, you might not have quite that viewpoint on it.

SULLIVAN: I mean, the problem is going to be exposure this case has gotten, defense and I think the defense attorney is going to have to think about motions to file because the community, legitimately, is upset about this. So if a defense attorney is going to make a credible argument, the he really has to be or she really has to be in front of an impartial jury who can look at this and say: Well, you know, it is a lot to suggest that it is reasonably foreseeable that the child could get to the gun that was secreted in a shoe box, take the gun out of the house, into the school and then use the gun at the school. As a defense attorney, I would chop that up into so many little steps to make a jury see that, you know, it's probably not foreseeable that all of those things could have happened.

VAN SUSTEREN: Does it make a difference if he didn't have the gun lawfully to begin with? I mean, what if the man in the house shouldn't have had the gun anyway, does that make a difference?

SULLIVAN: As a matter of criminal law, it doesn't make a difference.

COSSACK: Although it doesn't help.

VAN SUSTEREN: Doesn't help, no.

SULLIVAN: Certainly is a bad fact you wouldn't want the jury to hear.

COSSACK: Lisa, in terms of prosecuting this case, would you take a position that says: Look, you know, 6-year-old in the house unsupervised, gun in the house equals foreseeability.

HALUSHKA: Absolutely I would, and I think if I don't have the facts mistaken on this case, that actually this 6-year-old child knew of the gun and was shown the gun, and had had access to it before, and knew where to find it. And I think that you can present it to the jury that this is just a time bomb waiting to go off.

VAN SUSTEREN: And that's all the time we have for today. Thanks to our guests and thank you for watching. For more on this story, log-on to CNN.com as our guest, Lisa Halushka, a lawyer who specializes in juvenile law, leads our chat session.

COSSACK: Tomorrow on BURDEN OF PROOF: the White House e-mail controversy. What subpoenaed information eluded investigators, and when did the Clinton administration find out about the computer problem? A congressional committee wants answers. That's tomorrow on another edition of BURDEN OF PROOF. We'll see you then.

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