Child abuse cases try prosecutors
On June 17, Mario Hernandez, 30, pled guilty in Edgartown District Court to five assault charges against two children, in what knowledgeable court observers agreed was a disturbing case of child abuse.
In a plea agreement, Associate Justice John M. Julian sentenced Mr. Hernandez to serve 11 months in the Barnstable County House of Correction, plus two years of probation (MV Times, June 18, "Hernandez guilty of abusing children").
Allegations of child abuse present complex legal issues for school officials, police, social service agencies, and the court.
In follow-up interviews with The Times, prosecutors, social workers, and school officials, while unwilling to discuss the specifics of this case, described the complexities they face when dealing with allegations of child abuse.
Representatives of the Cape and Islands District Attorney's office said that the public is not always aware of the factors that influence the ultimate disposition of a case.
The immediate safety of the children involved, the rights of defendants, and the possibility that a trial could take an unexpected turn all play a role and sometimes lead to a sentence that the public criticizes sharply.
In the Hernandez case, the prosecution's case rested heavily on the testimony of the two children involved. Cape and Islands Assistant District Attorney Laura Marshard made it clear in the courtroom that the reason she had agreed to accept a plea agreement was to spare the children the ordeal of testifying.
In outlining evidence she described as "sickening," Ms. Marshard said the Commonwealth would prove that Mr. Hernandez repeatedly hit the young children with a wire, a kitchen utensil, and a boxing glove. Mr. Hernandez, a native of El Salvador who is in this country legally, admitted to those facts in court, as part of his guilty plea.
Ms. Marshard asked Judge Julian to impose a total of 9.5 years in a House of Correction, with only one year to be served. She said that if the case had gone to trial and resulted in a conviction, she would have asked for the full 9.5 years to be served.
Plea agreement
Many criminal cases that wind up in the court system are resolved through a complex negotiation that results in a plea agreement. Through the various hearings and procedures leading to a trial, the defense attorney and the prosecutor often make offers and counter offers. On the day of a trial, the judge often takes a strong hand in negotiating a plea agreement. By letting the attorneys know what sentence he could accept in a plea agreement and what sentence he could impose if the defendant is found guilty, the judge takes some of the leverage out of the hands of attorneys and the prosecution, and provides a strong incentive for both sides to conclude the case. According to experienced prosecutors, sometimes a judge will let it be known that if a defendant is found guilty at trial, a lengthy prison sentence is certain.
A plea agreement is a way of accepting a sure thing, instead of gambling on the outcome of a trial. In a case where young children are asked to testify against a parent, the unpredictability multiplies.
Prosecutors with experience in child abuse cases know that children may become frightened or confused when faced with the pressure of testifying from the witness stand. Defense attorneys use this unpredictability as leverage. Prosecutors must weigh the value of damaging testimony from a child victim against the possibility that the young witness may not be able to manage the difficult circumstances in the courtroom, resulting in a not guilty verdict that allows the defendant to go unpunished.
History of abuse
Among the troubling aspects of the Hernandez case is a long history of abuse and neglect, according to a Department of Social Services affidavit obtained by The Times. According to the document, one of the children Mr. Hernandez admitted in court to abusing was taken into state custody in April 1997. The child was one of two children placed in foster care at that time. Among the reasons cited in the document are abuse and neglect of an older child by the children's mother, Holly Hernandez, also known as Holly Geddis. The Department of Social Services affidavit also noted violence between Holly and Mario Hernandez, described then as her boyfriend. In cases like this, the state agency provides support services, with the goal of reuniting the family. Services provided included an early education program, individual therapy, and housing, according to the affidavit. In April 1999, two years later, the children were returned to the home, and four months after that, legal custody was returned to Holly Hernandez.
According to allegations made in the affidavit, the abuse and neglect continued. In 2005, reports of abuse involving all seven children in the home came to DSS from multiple sources, according to the affidavit. In a period of less than three months, beginning in February of 2005, state investigators got five different allegations of abuse or neglect by Holly Hernandez and Mario Hernandez, involving all seven children in the home. Among the allegations DSS investigated were beatings using various objects such as a cable TV wire and a spatula, children confined to filthy rooms except for meals, cold showers, cold baths, scalding showers, and forcing a child to kneel on rice for hours while holding heavy weights.
During this time, school officials told investigators that one child, then in elementary school, was often responsible for taking care of the other six, and that the child's school behavior deteriorated rapidly. The child was soon in trouble with police and eventually was suspended for bringing a knife to school, according to the affidavit.
The affidavit outlines allegations only; it does not resolve the facts of the case. But the state agency found enough evidence to substantiate an "immediate safety risk," and recommend that all children be removed from the home. That took place, according to the affidavit, in July of 2005, and all of the children were placed with relatives or in foster care.
A police investigation, prompted in part by the allegations included in the affidavit, led to the charges that Mr. Hernandez pleaded guilty to on June 17.
While Holly Hernandez faced no criminal charges in connection with the abuse outlined in her husband's case, she has a long criminal history on the Island. In her most recent skirmish with the court system, she pleaded guilty to intimidation of a possible witness in her husband's case. She failed to appear for the original trial on the witness intimidation charge. After a warrant was issued for her arrest, she surrendered to authorities. At a bail hearing, Ms. Marshard cited Ms. Hernandez's criminal record dating back to 1991. Ms. Marshard also cited more than 30 defaults for previous court appearances, seven separate warrants, and four probation violations.
Protecting Children
Responsibility for protecting children in danger ultimately falls to the state Department of Children and Families (DCF). The agency was known before July, 2008 as the Department of Social Services (DSS). The name change is not inconsequential. "This change gives the department a name that is more descriptive of its mission to strengthen families and protect children from abuse and neglect," wrote Commissioner Angelo McLain, in a memo explaining the switch.
According to information posted on its web site, the Department of Children and Families is guided by a list of principles. The first principle is to ensure the safety of children. Among many others is a principle that children do best when they are with their families, supported by appropriate state services. "Substitute care is a temporary solution, and requires the Department and the parent(s) to direct their efforts toward reunification of child(ren) and parent(s). As soon as it is determined that reunification is not feasible, the Department shall take swift action to implement another permanent plan, such as adoption or guardianship," it says on the web site. "These dual obligations - to protect children and yet simultaneously to respect the right of families to be free from unwarranted state intervention - present an inherently difficult balance to strike. Yet, this is precisely the Department's mandate."
A body of clinical research, according DCF, backs up the principle of reunification. The services the agency provides to support a family includes those that address poverty, mental health, day care, housing, and education. These policies are not unique to Massachusetts. They are widely accepted principles in other state child welfare agencies.
The agency rarely comments on specific cases, and its representatives declined to talk about the Hernandez case.
"In order to protect the privacy and confidentiality of the families we work with," said Alison Goodwin, director of public affairs for the state agency, "it is not our practice to comment on details specific to individual cases, especially those in which law enforcement is involved."
School's role
When there is violence against a child at home, school personnel are often the first to discover it. Under Massachusetts law, teachers, counselors, and administrators are "mandated reporters," a legal term which means if they suspect abuse or neglect, they are legally required to report it to proper authorities, following a well-established process.
While he would not comment specifically on the Hernandez case, Tisbury School principal Richie Smith said it can be a heartbreaking experience for a teacher. They must make a decision about starting a legal process that could have crushing consequences for the child. The child is not likely to understand the consequences. A case where it is immediately and conclusively evident that a child is being abused is rare.
"It's such a sensitive thing. Sometimes children want teachers to know about it, but they don't know the parent can get in trouble," said Mr. Smith. "It's tough to remain objective, in these situations, but you have to."
Mr. Smith had high praise for his staff, and their passion as advocates for children facing an abusive environment at home. "They are very, very on top of the treatment of kids," Mr. Smith said. "They are usually the first people who know what's going on. The children don't advocate for themselves."
All school personnel receive training about how to recognize abuse or neglect and the responsibilities they have under state law to report it. Sometimes, immediate action is warranted.
"If we feel the child is in danger, we will hold the child," said Mr. Smith. "We don't release the child. That's legally what we should do, liability wise what we should do, and ethically what we should do."
He was asked if he thought the Department of Children and Families adequately protects children in danger. "It's tough for me to criticize," said Mr. Smith. "My personal feeling about DCF is that they do a good job. I understand the stress they are under. Anything we've asked for, they've done."
James Weiss, superintendent of Martha's Vineyard public schools, also would not speak specifically about the Hernandez case. But he said in general the role of the school system is to report abuse and work with children and families to improve the situation. The school's role stops short of legal advocacy.
"I'm not sure we have that capacity," said Mr. Weiss. "Our main job is the education of youngsters. We do what we can, but other agencies need to take responsibility."
