“Reasonable efforts” has real meaning

A recent decision of the Court of Appeals illustrates a an omission of the Cabinet for Health and Family Services that seems all too common. In the unpublished opinion, M.G.F. II v. CHFS, 2006-CA-002093-ME (March 21, 2008)(NOT to be published), the Court remanded an involuntary termination of parental rights case because the Cabinet failed to evidence reasonable efforts to reunite the non-removal parent, the father. I have often seen this phenomena when children are removed from one parent and the non-residential parent either lives far away, is uninvolved, or has some “issues”. The Cabinet focuses on reunification with the parent of removal instead of devoting those efforts towards both parents. I suspect this is not so much an intentional omission, but more of a systemic problem.

Such a circumstance of divided households is one case on the worker’s caseload even though there are two separate parental residences. If a worker only gets credit for one case, what incentive is there to provide services to two households. That is double the work for the credit of one family. With caseloads stretched beyond reason and the government unwilling to sufficiently fund child protective services, the pressure to focus only on the residence of removal is significant.

Further exacerbating the problem, unless it has been changed since my time, the computer system used by the Cabinet (TWISt: The Worker Information System) automatically makes the parent the child was removed from active as well as the children. A non-residential parent is not put into the referral screens because no allegation are made against them. TWISt captures data, including face to face contacts, with each active individual in the case. This information is used to generate reports to measure compliance with Federal regulations that tie payments of block grant monies to Kentucky. The reports are also used to measure an individual worker’s performance. TWISt has no idea if these face to face visits actually occur; it is an honor system that expects employees to input accurate data even if it is going to hurt their employment situation.

One way to prevent low numbers of contacts, but still be technically truthful, is to forget to add a parent who does not live in the home of removal as an active individual. This means there is no tracking of services to that person. Whether this occurred in MGF’s situation is unknown, but the point remains.

Now, the factual background provided in the MGF case do not show if the scenario I laid out above applies. All the case reveals is that the Cabinet did not put forth substantial evidence that they provided services to the father, MGF, to assist him in obtaining custody of his children. I make the inferential leap that if such evidence was able to be offered up, it would have been.

MGF is no father of the year by any stretch. He allowed a couple of years to pass with only four phone calls to his children. Even when they were moved to within 20 miles of him, he did not go visit them. Regardless, the Cabinet was under the duty to provide services to help him get up to speed as a father. No evidence of this duty being discharged was entered into the record and so the court remanded the case for further proceedings.

Improving Child Protection in Kentucky (Moment of Silence) postscript:

I followed up regarding my concerns, posted here, about Representative Stan Lee’s sweeping and innaccurate portrayal of ALL the family court judges in Fayette County being against ALL of HB 151. I have confirmed from a very knowledgeable and reliable source that ALL of the Fayette family court judges were, in actuality, in favor of HB 151 as it had been amended. This directly contradicts Mr. Lee’s assertion. I will not venture in to try and discern why his stated reason for voting against HB 151 was false except that, even if the best light, it was sloppy on his part.

Improving Child Protection in Kentucky Postscript (or - a moment of silence, please)

The title of this article from today’s Herald Leader was a bit too prophetic to be accidental: “Child protection revisions all but dead“. The impetus for this bill began back with the Office of Inspector General’s report many long months ago. Let’s parse through this article:

A bill that would have opened Kentucky’s child protection courts to the public on a limited basis was rejected Wednesday by the House Judiciary Committee. And measures that would improve procedures in child protection courts and require ethics training for social workers have been procedurally buried.

Ethics training? Obviously too radical an idea.

Rep. Susan Westrom, D-Lexington, who sponsored a bill on training social workers, said that officials from the Cabinet, which oversees the system, want to kill it.

“They are trying to keep me from creating a system of checks and balances,” said Westrom.

Checks and balances placed on the government. . . hmmm - where have I heard that idea before?

But Rep. Robin Webb, an attorney, said she didn’t think the bill went far enough to protect information about children whose futures are being decided in the courts.

“The child’s interest is my No. 1 concern,” said Webb, D-Grayson. “I don’t want it in my county.”

I’m confused - does she not want the ethics in her county, the checks and balances . . . maybe she means that everyone else’s number one concern is promoting child abuse, hmmm. Nope, still confused.

And Rep. Brent Yonts said he was concerned that the legislation would allow people in the community to spread information they heard in hearings.

“How do you keep the town gossip from talking?,” said Yonts, D-Greenville.

Heaven forbid that the town gossip would wander into court and discover that the neighbor’s children were removed. The absence of the children wouldn’t have tipped him off. The police cars and social workers taking the kids to the cars wouldn’t have tipped him off. Oh, thank God we can now keep the removal of the children a secret so people won’t talk.

But Westrom said that legislation is in jeopardy because it calls for increasing the fees for court-appointed attorneys for children and parents for the first time since the 1980s. House Bill 151, drafted by the Cabinet’s Blue Ribbon Panel on Adoption, will be sent to the House Appropriations and Revenue Committee, which Westrom said could be “a graveyard for bills.”

That was a close one. If these parents started getting court appointed attorney’s that were compensated as well as those representing criminals in federal court, they might start challenging the Cabinet more. We woudn’t want them getting ideas of seeking legal protections now would we?!

Rep. Stan Lee, R-Lexington, said that Family Court Judges in Fayette County were against House Bill 151, so he voted against it.

I know this is untrue. Mr. Lee shouldn’t make such sweeping and inaccurate statements. There was a concern about the practicality of having attorney’s present and representing parents at the temporary removal hearing, but still have that hearing within the statutorily mandated timeframe. Mr. Lee, though, makes it sound like ALL the judges were against the ENTIRE bill and that is patently false. Besides, does Stan Lee ONLY represent the Family Court Judges or is he supposed to represent the community?

In regard to a third bill, Cabinet spokesperson Vikki Franklin said Wednesday that training curriculum for social workers is already sufficient. She said that a bill sponsored by Westrom would be costly and decrease the amount of time social workers could spend on services.

It never was sufficient before and from what I have seen and heard, it still is not sufficient.

However, Westrom says the additional training called for in her legislation is necessary and won’t cost the Cabinet money.

“The Cabinet would rather pay $425,000 to settle whistleblower lawsuits than train their social workers,” Westrom said, referring to a recent case in which former social workers said the Cabinet mishandled cases.

Did I mention that Susan Westrom has a Master’s degree in Social Work.

Meanwhile, Cabinet officials say they have made internal changes that address the problems involving improper removal of children.

And those measures are . . . ? Oh, that must be the information that must be kept behind closed doors to protect the children’s privacy.

Child Advocate David Richart said yesterday that the Cabinet’s resistance to change was the basic reason the reform legislation failed.

Resistant to change is such a harsh criticism. Let’s reframe that to being glad that the Cabinet is consistent and predictable.

The Cabinet takes a stand for the “best interest of the child (umm - no) . . . Cabinet/Worker”

I try to take at least 24 hours to calm down over a topic before I write a post about it. This time I took about 96 hours. I recently had a conversation with Cabinet worker’s in Fayette County. The topic was reunification services to a parent whose child was removed by the Cabinet a few months back and where the child was placed in the temporary custody of the other parent. Even though the removing worker had been giving this parent hope of reunification, it turns out that the Cabinet’s official position is that they have nothing more to do; they have achieved “permanency” for the child by recommending custody be given to the other parent. I could tell the removing worker was struggling with what the right thing to do and I respect her for being willing to struggle with it. The other worker just summary stated, without knowing the family, circumstances or issues (and frankly without even being invited into the conversation) that should such a case be “transferred to [her], she would give it 30 days and then give permanent custody to the [other parent].” She stated quite righteously that her job would be done because she would have achieved permanency for the child.

Interestingly, the Cabinet, as an executive branch agency, has achieved something quite miraculous. They have changed the law. The standard for removal and placement given in KRS 620 is whatever is in the “best interest” of the child. The Cabinet, however, has decided the only thing that really matters is permanency. It gets even more interesting. Permanency is achieved by the Cabinet not when the child has a permanent place to live (I’ve seen enough disrupted adoptions to know this isn’t really possible), but when there is a goal in place that looks like it may lead to permanency. So, what is worker number 2’s rush to give permanent custody to the other parent really all about?

I hope you noticed that she said nothing about trying to figure out the best home for the child for the long-haul. She said nothing about why the child was originally with parent 1 to being with (which might have been an indicator that something about that parent was “best” for the child at some point - and may be again). No wrestling or struggling. That is why I was angry. This worker, with the blessing of the Cabinet, had changed “best interest of the child” to “best interest of the worker’s caseload”. You see, as soon as parent 2 gets permanent custody, the worker gets to close her involvement out. Since most teams go on a strict rotation basis for assigning new cases, she gets to have a lower caseload as a result.

You may be mentally telling me that it is obvious that if the child got hurt with parent 1, then of course it is in the best interest to be with parent 2 permanently. All I can say is that is an oversimplification. You may be right often enough to justify being simple minded about it. Certainly worker 2 felt very justified in staying simple minded. This is a life-altering decision that is multi-faceted. Parent 1 may have encountered a pure accident or something else beyond their control - a one time fluke - and otherwise be a good parent. Parent 2 may have some problems that were not discovered on the Cabinet’s very cursory home evaluation. There are many factors in both KRS 620 and KRS 403 that make it clear even the legislature knows it isn’t a simple matter. Besides, occasionally the Cabinet flat gets things wrong. How can this worker take it so lighlty?

On to rant number 2 which I touched on in a previous ponderment. Worker 1 had children (and even grandchildren). Worker 2 had none and was quite young (with the air of being used to getting what she wanted - perhaps thats why she felt okay about intruding in the conversation). I won’t now be simple minded myself and say that having children equals good worker or not having children equals bad worker. What I will say is that workers without sufficient life experiences to create a level of understanding and empathy towards their clients tend to be very hard in their approach. Having children tends to promote these experiences, but it is not the only path. Worker 1 had the experience and so she struggled. Worker 2 had not and so she had more empathy for her caseload than for a parent and child relationship that is to be forever altered.

Best interest is not exactly a fool proof or specific standard, but it is sure a sight better than “permanency”. Permanency should be left where it belongs - a factor to consider in determining best interest.

Words to give pause

Blogger’s like to have readers - otherwise they would just keep a journal and hide it under their mattress. So, when someone says “I read your blog”, there is usually a certain gratification. However, when that person is a judge who tells you this in the midst of a pre-trial in a case involving a frequent topic of your blog, then “I read your blog” gives pause rather than gratification. That happened recently and in that pause, I considered the risk versus benefit of blogging - at least on topics that I have a strong opinion about. Did I harm or help my current client with my postings? Did I offend him/her (since many of my posts are meant to prick the minds of people enough to get them thinking about a topic)? Was the judge informed or did my shared experiences contradict his/her own? Did I at least convey that I care deeply about the issues, even if the judge’s perspective is at odds with my own? I cannot answer any of those questions and regardless of the answers, there is no going back. Once something is posted on this world wide web, consider it immortal. The only thing I could do was review some of my prior posts and see if, in retrospect, I have been balanced and fair.

In reviewing my posts regarding the Cabinet for Health & Family Services, I recognized that I have advocated strongly for increased funding and other systemic improvements. What I have not touched upon much is the individual responsibility of a person who undertakes the duties of working as a social services worker for the Cabinet. It is entirely true, as many of my prior posts state, that chronic underfunding, understaffing and other circumstance beyond the individual worker’s control perpetuate systemic problems. It is also true that these systemic problems influence the individual workers in how they perform their duties. However, I have seen workers who performed with integrity despite the pressures and I have seen other workers take the short cuts. My point is that I have not intended to make excuses for individual workers to neglect their duties by engaging in falsification of records, failing to make reasonable home visits to clients and foster homes, failing to perform thorough investigations, jumping to snap conclusions, engaging in lazy black and white thinking, perjuring themselves in court, or any of the other short-cuts I have seen taken.

There is a cost to maintaining integrity and providing quality services in spite of the system’s problems. One cost is time. I routinely worked sixty hour weeks and many times much more than that and barely stayed caught up so, I know the good workers at the Cabinet must be doing the same. So many nights were spent responding to a an emergency page or phone call. Another cost is emotional. I had many sleepless nights thinking about people in my care as well as reviewing the tasks left undone and I know many workers go through the same struggle. Despite the costs, those workers with integrity care deeply and recognize that they are making life altering decisions. There is no room for short-cuts with that.

While this post lacks the satirical quality of some recent ones and has that sappy, soapbox quality that can be such a turn-off, I wanted to be sure to explain that there is not a simple equation of “systemic problems” = “problem worker excused.” Instead, I advocate for fixing the systemic problems with the Cabinet and also call upon individual workers to maintain integrity and quality despite the obstacles. Your families deserve no less. If you are simply putting in time and getting by for that paycheck, please find another career.

And, as for the perils of blogging out here in the public realm where even judges happen across my musings, I am quite sure that it is not the smartest or most political thing for an attorney to do. I am sure it could cost me clients or job opportunities. Perhaps it could sway a judge against a client or cause a hundred other bads, but speaking out for one’s believes has never been an activity for the timid. I write this for the hope of the one good that it might bring and that hope is sufficient to give me the courage to put my beliefs out there where you can consider them. Who knows - maybe I’ll even get it right occasionally!

Child support in Dependency, Neglect and Abuse actions

If you would like a smattering of “let’s help poor people” optimism in the midst of boring child support and policy talk involving dependency, neglect and abuse actions, check out this post at the Lexington Lawyer blog.

News stories regarding child protection:

I encourage you to read these stories from today’s Herald Leader:

Toiling for hope, family

Often, there’s no easy answer

They echo many of the things I have said social workers for the Cabinet struggle with in prior posts and give many of those workers some oft deserved positive press.

However, problems do exist and persist in the child protection system. This article touches on one problem:

Accuracy of Fayette drug tests disputed

When we have family court judges highly dependent upon drug test results to make their decisions, accurate testing is imperative. If there is a positive drug test, some family court judges will make the logical jump from there being drug use to a finding of neglect without needing evidence about the extent of drug use or the impact upon the child. This is despite KRS 600.020(1)(c) specifically requiring a showing that the parent:

Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including, but not limited to, parental incapacity due to alcohol and other drug abuse as defined in KRS 222.005;

KRS 222.005 gives some more objective criteria such as loss of control over use or recurrent and persistent use despite legal, work, or social impairments.

Thus, one single false positive test result can mean a child is removed from a parent. Also, since a great emphasis is placed on the parent coming clean (confessing), they may end up having to conform their testimony to fit the drug test in order to get their child back, even if it is not the truth. Now, the likelihood of this scenario coming about, I hope, is extremely low.

What is much more likely is that the judge imputes a positive test result when they come back saying the sample was “dilute”. Dilute samples occur when someone tries to flush their system to avoid a positive drug test. However, since the CAPS program uses a VERY low cutoff for dilutes in Cabinet cases, dilute tests also occur when someone drank too much coffee, tea, Mt. Dew (my favorite) or other caffeinated drink. They also occur when people drink a lot of water to remain hydrated because of working outdoors. For many, it becauses a very precise diet of hydration and caffeination to avoid dilutes for innocent reasons.

Again, it is crucial that the CAPS testing be as accurate as possible.

Ponderments

I’m sitting and pondering. This rarely results in any kind of answer or epiphany, but it helps the time pass when I sit on the porch to keep speeding cars or otherwise deranged people from harming my children as they insist on playing in the front yard rather than the perfectly good back yard with the swings and fence.

Anyway, tonight I am pondering how the courts handle dependency, neglect and abuse matters. Specifically, why there is no jury in such a court. Criminals, or those alleged to be such, have a Constitutional right to a trial by a jury of their peers (I’ve learned that peers does not mean other criminals though). The argument is that they have the most at stake since they could lose their freedom. Since they have such a basic right at stake, then they are to be afforded maximum protection. Personally, I would rather get locked up in jail and lose my freedom than for my children to be placed out of their home. So, at least for me, the removal of children impinges upon a greater right than a criminal proceeding does. Therein lies the conundrum which I ponder. It is indeed a ponderment (my word, not W’s).

So, why is it that parents who have been bereft of their children have the least of protections? There is no right for a trial by jury. They do have a right to counsel (at least $500.00 worth). But, if they show up in court they can be ordered to do anything before an adjudication ever occurs. For example, even without allegations of drug use, parents are often drug tested. If they test positive for marijuana (which was smoked by many a social worker when I was employed there), their fate is sealed. So, for practical purposes, there is no presumption of innocence. Also, they are interviewed by social workers without any right to remain silent. If they refuse to talk, a petition for non-compliance, which is considered neglect, is filed. If they speak, the social worker can present their words, in or out of context, against them in court.

Now, the stripping of each of the above rights has a reason. Society does not want to allow children to continue to be abused or neglected while their parents hide behind trifles such as the Constitution or rules of evidence. But, the one that I still ponder is the absence of a jury. Supposedly it is because of the need for privacy for the children. However, one look around the crowded courtroom seems to belie that assertion. Besides, there are other ways to maximize privacy even with a jury. Perhaps it is for judicial efficiency. It takes time and resources to empanel a jury. But, adults who are being placed in the guardianship of another due to incapacity or incompetence get a jury - and that does not seem to slow things down much. Most of those “trials” take about fifteen minutes.

Now, one thing juries are supposed to do is bring the community’s values and standards to bear on a given situation. It seems to me that dependency, neglect and abuse actions need this far more than criminal cases. My reason is that the statutes and regulations in Kentucky that define terms such as neglect boil down to saying that neglect is anything that is neglectful, or creates a risk of harm. If anything needs the application of community values and standards it is this kind of non-definition. Compare this to a criminal statute prohibiting theft, which means takings something that you have no right to take. That is more straightforward than saying neglect is - well - neglect and you will know it when you see it (I know, not all criminal statutes are that straightforward, but when there’s murder - we at least know somebody is dead). So, when we most need a cross-section of the community to help define something, they cannot be present.

Instead, we have a single worker who is typically in their mid-twenties and fairly fresh out of school without experience as a parent, representing what is neglectful or abusive parenting to a single judge. Now, this will probably make many folks mad (actually, too late for that), but I have met very few folks fresh out of school, in their mid-twenties, who have never parented, with reasonable ideas of what constitutes neglectful or abusive parenting. Frankly, I haven’t met so many middle-aged parents with lots of life experience that are entirely reasonable either, but a group of jurors would come the closest to a reasonable definition.

That leaves the single judge to carry the burden against an onslaught of hundreds of cases coming through his or her doors on a never-ending basis. From what I have seen, they understandably rely heavily on that social worker and what evidence that person presents (the power a social worker has is a topic for another day). It is a bit of a circular system. It seems to me, as I sit and ponder, a jury could alleviate many of the concerns that arise as Constitutional protections and rules of evidence are relaxed.

All of which brings me back to sitting on the front porch and I begin to ponder a tangential thought (a pondergent). Would a social worker find me negligent for allowing my children to play in the front yard, near a street. Perhaps I should cloister them in the back yard just to be extra safe.

Difficult choices for women:

While I am not a woman, I am closely related to several so I have some empathy for the issues involved in decisions related to career, marriage and family discussed in this post by Susan Cartier Liebel.

Also, as a family law practitioner, I have seen husbands suddenly decide they are ready to be free of their wife and responsibilities and file divorce. Instantly, they believe they owe nothing at all to the wife who made career sacrifices to stay at home or work shorter hours to care for the children. This decision is one that should be honored and appreciated by those husbands and society. Preferrably that honoring would be in the form of working to revive the marriage, but if the marriage ends, the honorable thing would be for the husband to step up and pay maintenance, at least for a time, without whining about it.

Those women who decide to balance family and career should also be respected and honored for this decision. They should be respected for the drive and independent spirit this exhibits and honored for the wisdom to not trust their futures solely to their spouse in this age of ready divorce.

Why we presume innocence:

Here is a story about the 200th person to be set free from prison and exonerated by DNA evidence. Often we pay lip service to the idea of presumption of innocence, but deep down believe anyone charged with a crime, or even suspected of one, to be guilty. See the comment to this prior post.

This 200th person proven to not have committed the crime of which he was convicted reaffirms that we must safeguard this basic tenet of law: innocence until proven guilty. This is because he shows that even when we take every procedural precaution against false convictions, they still happen. To minimize this tragedy, we must remain vigilant to the concepts set forth in the Constitution. His exoneration drives home the point even further because if it can happen to some guy who was sitting home alone watching TV, it can happen to me. Worse yet, the real guilty party went free.

While the Constitution provides this express protection in the arena of criminal law, it should be carried into other areas as well. While the burden of proof is not so high in civil matters, we must still start with the expectation that the party pursuing a claim must prove their case. For example, in dependency, neglect, and abuse court, the desire to err on the side of caution lies in tension with presuming innocence. Here, where competing interests cut the finest of lines, the vigilance must all the greater.