Improving Child Protection in Kentucky part 3

This one sounds straight-forward but it would be difficult. How exactly does one define “neglect, abuse, and dependency” in such a way as to eliminate overreaching but also allow family court judges to protect children in need. I do think the “reasonable grounds” standard should be bumped up to probable cause though how much this would change actual practice is questionable.

3. The vagueness of the definitions of neglect, abuse, and a dependent child under KRS 600.020 makes it difficult to apply the statute in a fair and uniform fashion. Likewise, the statute’s broad terms create the opportunity for findings of neglect, abuse, and dependency to be inappropriately applied. For example, as written, the statute can and, in some cases, has been applied to impoverished families as well as accidental injuries and deaths. The Cabinet should work with the Legislature to make any and all appropriate modifications to the statute to clarify the intent of the statute and, to the extent possible, eliminate the potential for misuse or over-application of the statute. Further, while KRS 620.040 requires a ‘probable cause’ standard before a judge may issue a search warrant to enable a law enforcement officer to enter a residence to evaluate the condition of a child, KRS 620.060 requires petitions for emergency custody to only meet a ‘reasonable grounds’ standard that one of three elements exists, in addition to a finding that the parents or other person exercising custodial control or supervision are unable or unwilling to protect the child. The second condition also includes the statement, “This condition shall not include reasonable and ordinary discipline recognized in the community where the child lives, as long as reasonable and ordinary discipline does not result in abuse or neglect as defined in KRS 600.020(1).” There are nine elements in KRS 600.020(1), adding to the confusion as to what substantiates abuse, neglect, or dependency.

When I was a worker and supervisor for the Cabinet, I only once heard of an ex parte order for the emergency custody of a child to be declined by a judge in my county. Most of the time, the worker presenting the ECO and petition went unquestioned by the judge. I heard from other counties, though, that getting an ECO was very difficult. Neither extreme is desirable. I think in my county, the workers always took the most cautious approach and trusted that the judge would say no if it was unreasonable. The judge always trusted the worker. Neither wanted to hear that the child they refused to remove the night before was now dead or seriously injured.

This “better safe than sorry” approach is entirely understandable. As I explained to someone recently, our society has gone from one extreme of underprotecting children through a slow progression to where we are now. We are now on the upswing of that pendulum and heading into the overprotection range. I suspect the pendulum has a bit farther to go in that direction and what we are hearing now are just the beginnings of recognition that we actually can be overprotective and we are heading that way.

How can we “overprotect” our children? They cannot protect themselves! When I refer to overprotection I am referring to the cost we pay for each increment of increased protection. At some point, that cost is too high. Some of those costs include children being removed when they would not have been at imminent risk of serious injury, death or sexual abuse. I have seen children removed for potential risks (non-imminent) and for non-compliance with workers. That is a high cost. It is damaging to children to remove them from their home - even if it is a far less than ideal environment. I have spent hours moving children from home to home to agency because they were unable to attach to care providers. Many of those attachment disorders were exacerbated or even caused by removal from their homes.

So, the most practical thing that could come from recommendation number 3 above is that both workers and judges are encouraged or somehow required to engage in discussion about each ECO and petition brought, before it is signed, about the imminence of the risk and alternatives that might exist instead of relying on the face of the document alone.