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American Morning

Custody Hearing for McGuckin Children to Happen Today

Aired June 29, 2001 - 11:08   ET

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

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LEON HARRIS, CNN ANCHOR: In Sandpoint, Idaho, JoAnn McGuckin is fighting today to reunite her family; a custody hearing gets underway this afternoon.

Now, you'll remember six of McGuckin's children held police at bay for several days when their mother was arrested on neglect charges. They are now in foster care. McGuckin has left jail after a judge ruled there was not enough evidence to prove a case of felony child neglect. The charges were then reduced to a misdemeanor, which means that McGuckin could go to prison for six months. She refused to leave jail earlier because the felony charge meant visits with her children would have been supervised.

(BEGIN VIDEO CLIP)

PHIL ROBINSON, BONNER COUNTY PROSECUTOR: I don't think anybody should live like that, and I think the experts have now testified they shouldn't. So I think just common sense says nobody lives like that.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

BRYCE POWELL, MCGUCKIN'S ATTORNEY: What I've always said is you need to look at this in the big picture, and what this family's gone through with the sickness and death of their father and their fight to survive in poverty and with no water, and sometimes with no electricity. Seven kids and -- I guess if you've been through that, then you can make judgments about this family.

(END VIDEO CLIP)

HARRIS: Let's bring in legal analyst and "BURDEN OF PROOF" co- host Roger Cossack in Washington to talk some more about this.

Roger, good to see you this morning.

ROGER COSSACK, CNN LEGAL ANALYST: Morning, Leon.

HARRIS: What can you tell us what they may be looking for in this custody hearing today?

COSSACK: Well, custody is always the same thing, whether it be in Idaho or whether it be here in the District of Columbia. The question focuses on the children. And the question is: What is the best for the children? Can the parent provide that kind of home that we would hope, at least at a minimum, that a parent can provide for their children?

It has less to do with economic ability than it has to do with emotional stability and the ability to at least provide a clean home. And that's what some of the charges are in this case, is that the children were living in a place that was extremely filthy, they were eating food that was not sanitary, and they were living in an unsanitary place.

Those are the kinds of things that, obviously, authorities get concerned about. The mother claims that, look, these are things that happened. Her husband had died recently. They were in poverty; they didn't have enough money. There was illness -- that she just didn't have the ability to take care of them, but that she would have the ability to take care of them now.

HARRIS: So then, like, who are we likely to hear from, then, in this hearing this afternoon?

COSSACK: Well, I -- you should hear testimony, perhaps, from the mother. You should, of course, hear some testimony from the children. Perhaps from neighbors who are familiar with their situation; maybe familiar with how that family was conducting themselves before the illness happened and before Mrs. McGuckin's husband died.

People will be trying to paint a picture of what this family was like. And, of course, she is going to try and show that, you know, now that things could be different, that she would be able to conduct the raising of the children in a different way.

You know, we're not asking them to be raised -- I mean, the state is not saying, you know, you have to raise them in the most perfect environment. Children should be with their parents and, presumptively, they should be with the mother. The question is: Can a minimum standard be imported to the children.

HARRIS: You know, what I'm curious about Roger is, you know, now that this videotape of -- that was taken of the inside of that home has been seen all across the country, even around the world here on CNN, it's been very highly publicized. Is that going to weigh in at all into, you know, what is going to be considered by the court in this particular case? Because it's not like this is happening in some neck of the woods and no one knows what's been going on inside this house.

COSSACK: Yes, exactly. Look, it is what it is. I mean, look, that is the evidence of what the conditions were inside that house when those pictures were taken, and those were the conditions that the children were living in inside that house when those pictures were taken. Of course a judge is going to look at that.

And the question that the judge is going to say is, you know, how do I know that these children who -- and remember, are minors, and under the law don't have the ability to make decisions for themselves -- how I know that these children won't, if I give you back to that relationship -- if I give you back your children -- that a week from now they're not going to be living in the same conditions as we've just seen? You know, show me, tell me any reason why you, as the mother because, you know, we want children and their mothers and their natural spouses to be together. But tell me, show me, convince me why this isn't going to happen again.

HARRIS: All right, well, you said earlier that, you know, that she doesn't necessarily have to prove very much -- that she may be able to put them into a life of luxury or whatever, but just that she's fit in this particular case.

COSSACK: Right. Correct.

HARRIS: With that in mind, than, which side has the higher burden of proof, if you will?

COSSACK: Well, there is a presumption -- and I don't want to get too far into the word "presumption" because under -- in law "presumption" means one thing. But there is a general presumption that children should be with their natural parents.

In this situation, we know the father died recently. This is not the kind of residence that most of us, at least, are used to. This is out in the wilderness, it doesn't have the kinds of natural things -- or the kinds of things that most of us are used to. That, again, isn't the issue.

The issue here is, are they going to end up living just like we saw in that videotape? If they are, I would think a judge is going to have no problem saying, you know, we can't allow that. I think so.

I think that, in one sense, if the mother can come in and say, look, you know, let me explain to you why this happened, and let me explain to you why it's not going to happen. Now, the problem she's going to have is it's clear that she does not like to have any regulation, at least in terms of her -- she wouldn't leave jail when she thought that...

HARRIS: Yes, she's proven that.

COSSACK: Yes, when she thought that she was going to -- her visits with her children would be supervised.

Well, it's pretty clear to me that the state is going to say, you know, at least for a while we're going to have to have some people have the ability to come up there and visit your place just so we can make sure that these children aren't living in the same kind of squalor that we saw before.

Now, I would think the mother, if she wants her children back, is going to have to accede to those wishes.

HARRIS: Yes, and I know this may be a bit presumptive, but on the way I've got to ask you, do we know, or is it possible to find out exactly where these children would go if they were not to be returned to their mother?

COSSACK: We probably don't know at this time. It's been reported they've been living with other families, and I would think that it's probably a good idea not to report where they are so that -- for the benefit of the children. They would go, probably, traditionally under the law, to a foster family who would take care of them.

You know, they're brothers and sister; they should be together; they should be with their mother. But the mother is going to have to show and convince the judge that,, look, if you give me the opportunity to have my children back, we're not going to live like this anymore, whether it means that I have to do certain things or there will be people who will be helping us.

But it's clear that she is going to have to let an inspector in that house, from the welfare people of Idaho, who are, from time to time, is (sic) going to come up there to make sure that those children aren't living in that kind of squalor.

HARRIS: Yes, tough case. And as you know, speaking as a parent, it's kind of tough to watch a case like this and, particularly, things like that videotape.

COSSACK: Yes, it's very, very, very difficult. But I also notice that this woman has had, you know, exceptional difficulties in her life. Like I say, her husband was dead. So, you know, hopefully they'll be able to work it out and hopefully she'll be able to have her children back.

HARRIS: Yes, they've all been through the wringer out there, that's for sure.

COSSACK: You bet.

HARRIS: Roger Cossack, thanks much; and we will see you later on "BURDEN OF PROOF."

COSSACK: OK.

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