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.

One cost of cutting taxes:

I could not find a link for this story from the New York Times News Service reprinted in the H-L today. The headline read “Infant mortality rates rise in the south”. Briefly, the article states that infant mortality in Mississippi (and other unnamed southern states) shot up from the low of 9.7 per thousand in 2004 to 11.4 in 2005. The national average was 6.9 in 2003, the last year such data is available.

This rise was attributed to increased incidences of obesity and to cuts in welfare, including Medicaid. Though the article did not say this, I believe the increase in obesity can also be tied to cuts in welfare. My family, in an attempt to eat better, has begun searching out healthier foods at the grocerie. Turns out, the healthier and more natural the food, the more it costs. Conversely, the more chemicals and crap in the food, the less it costs. Unfortunately, the cheapest food tends to do bad things to one’s body, like increase obesity.

So, during this tax filing month as you consider how you are paying less in taxes thanks to certain cuts and deductions over the last several years, remember that those tax dollars used to help fund welfare programs that helped keep these babies alive.

Child Protection in Kentucky

The “Boni Bill” was signed into law. It provides for funding of an optimistic estimate of 60 to 80 new workers. Kentucky has 120 counties. Lexington and Louisville will get more than one each for certain. It also provides for increased security. Unfortunately, these measures do not address the actual safety concerns. The bill’s namesake was killed away from the office in a clients home taking the child to a visit with parents. Home visits with children will continue to need to occur if we want to reunite children and parents. The security measures, by and large, protect workers at their offices where the risk is lowest.

The criminal records checks are helpful in a limited way. The Cabinet was always able to run these checks and the existence of a criminal records, including violence offenses has always been common. Often, prior to an initial home visit, workers do not have sufficient information to even get an accurate check. Even with accurate information - what is the worker to do when they are mandated to initiate their investigation within a fixed period of time. The higher the risk of the allegation, the sooner the response has to be. Police accompanying workers on a frequent basis is likely to meet with resistance since police resources are also limited.

Absolute safety can never be assured. However, the best answer is to adequately staff the Cabinet so that the workers have time to be careful, time to team partner up on high risk situations, and time to be thorough. The Boni Bill is a step in the right direction. It is like taking your money out from your mattress and putting it into a savings account. At least you are now earning some interest, but with inflation, you are still losing ground. Even with 60 to 80 new workers, the Cabinet is still losing ground to Kentucky’s growing population and increasing poverty.

Well, of course they stripped it

I’ve become so cynical. My first thougth when reading today’s Herald-Leader article about the Senate stripping the “Boni Bill” of its provision to hire more workers was, “Of course they did.”

The Cabinet is understaffed. It has been for decades. Anyone who has been a front line social services worker knows this. Reviews and panels in the past have confirmed this.

It is practically an immutable fact of nature that one huge source of all the ills of the Cabinet for Health and Family Services is that there are too few workers. Invstigations suffer because of this. Services to return children home suffer because of this. Preventive services suffer because of this. Workers suffer because of this. Most importantly, children suffer because of this.

It is true that creating new worker positions is not a panacea to cure all the Cabinets ills. There is a punitive and excessively demanding management culture that seems to have a life of its own in the Cabinet. This creates unnecessary stress, insider fighting, and back biting that causes more stress for workers than the clients they serve cause. But, the creation of additional worker positions, if enough are created, will even impact that culture and insure better retention of trained staff.

When people are given an impossible task, with too frew resources, little support and low pay, such a negative culture is likely to arise. Then, when those same people are expected to continually do more with less, to the point where it feels as though they are to do everything with nothing, then that culture flourishes and becomes a permanent fixture.

Instead of spining up (getting a spine) and approving the hire of new workers, the Senate decided visitation facilities and a “Blue Ribbon Panel” would suffice. They can spare millions in tax incentives for Ford and other companies, but cannot fund even new positions for children.

Spine up Senate: Protect our children - fund the positions!

Another dirty lawyer tactic regarding child support!

I was recently presented with a question about child support. An unrepresented party had been asked to her ex-spouse’s attorney’s under the pretext of clearing up some questions about child support. While at this meeting, the lawyer stated that the child would be turning 18 and would she be okay with stopping child support at that time. Believing that this was the standard time for child support to end anyway, she said ’sure’. This is exactly the kind of underhanded tactics that gives lawyering a bad name.

Kentucky law (KRS 403.213(3)) provides for child support to continue past age 18 for any dependent child that is still in high school. Child support continues on through the school year in which the child turns 19 unless spelled out differently in the Decree of Dissolution. This woman had two more years of child support coming to her. The shameless lawyer did not advise her of this nor of the desirability for her to obtain advise of counsel before agreeing.

I so wish that I could advise people that they can trust lawyers because of our high ethical standards. I hope that by and large that they can, but these few bad lawyers makes such advise inadvisable. Instead, I must advise everyone to seek counsel for yourself before agreeing to something with opposing counsel.

The importance of communicating clearly

One Sunday morning, the pastor noticed little Alex standing in the foyer of the church staring up at a large plaque. It was covered with names with small American flags mounted on either side of it. The seven year old had been staring at the plaque for some time, so the pastor walked up, stood beside the little boy, and said quietly, “Good morning Alex.”

“Good morning Pastor,” he replied, still focused on the plaque. “Pastor, what is this?” he asked the pastor.

The pastor said, “Well, son, it’s a memorial to all the young men and women who died in the service.” Soberly, they just stood together, staring at the large plaque. Finally, little Alex’s voice, barely audible and trembling with fear, asked, “Which service, the 9:45 or the 11:15 ?”

This joke puts me in mind of an attorney I know whose favorite word is “clearly”. In his arguments, nearly every point is prefaced with “Clearly the facts . . .” or “Clearly the law . . .” I am either not nearly as bright as this fella or he has some power of prescience beyond my mere mortal limits because the things that are so “clear” to him always appear to be in just the opposite condition or very ambiguous to me. It occurs to me that taking time to be sure each party is talking about the same thing would greatly reduce the frequency and duration of arguments in or out of court.

Not enough by a long shot

The Herald-Leader reported that $2.5 million added to the Boni Bill. Many are applauding this as a good first step. What the the Cabinet needs - more workers. What the Cabinet gets - panic buttons. Someone please tell me how a panic button would prevent another tragedy like what befell Boni Frederick at a home visit? What the Cabinet needs - more workers. What the Cabinet gets - visitation facilities. So home visits are no longer going to occur? No investigations into the homes? No trial visits with the children at the home? Everyone’s visits scheduled around when one of the visitation rooms is open?

No - I think this is a waste of money. This is a $2.5 million dollar token tossed to voters. The Cabinet needs more workers and not just the 300 Gov. Fletcher discussed. They needed more than 300 workers a decade ago and they still need them. I am asking the legislators to not throw away this money on quick fixes that really do not address the problems. Give the Cabinet the staff it needs. More staff means a lower case load. A lower case load means increased safety because the worker has more time to be thorough. This means a greater awareness of risks to their safety and the ability to team up like police do when responding to high risk situations. This means being able to better assess families and the safety of the children so that unnecessary removals are less likely to occur. This means fewer terminations of parental rights because increased services can go to families where the children had to be removed.

The Cabinet needs more workers and anything less is a waste of resources.

Improving Child Protection in Kentucky, Part 6

I want to point out a connection that seems to be getting little attention. Today’s Herald Leader has this article regarding proposed legislation to increase social worker safety. Yesterday, the Herald-Leader had this article about removing language from proposed legislation that would have required judges to give oral and written notice of looming termination of parental rights. The connection is that the Cabinet has needed MORE workers for years to address both the issue of safety for workers and the issue of providing sufficient services to families to avoid having to terminate parental rights.

I did that job for years and frankly, whether a judge gives an oral and written warning about an impending termination proceeding is not going to make a huge difference. It would be a nice thing and it would allow lawmakers to say, “See, we’ve done all we can do - they were warned!” What will really make a difference, though, is to INVEST IN OUR CHILDREN and provide hundreds more social service workers.

Improving Child Protection in Kentucky Part 5

I believe this recommendation from the Office of Inspector General report is huge but under-appreciated by policy makers.

6. DCBS Permanency and Protection staff should receive consistent and repetitive training with regard to the elements required to substantiate abuse, neglect, or dependency. These elements should be standardized across the state and easily identifiable. For example, DCBS policy should mirror KRS (i.e. must have “physical injury” or “serious physical injury” to substantiate physical abuse) and define what elements are necessary to substantiate the abuse. Workers appear confused about what actually exemplifies abuse. For example, some social service workers have told parents it is “illegal” to spank their children.

During my tenure, two sources primarily defined terms such as abuse and neglect. One tended to be popular trends in society. This can be a legitimate way to define terms but only if we are talking about long-term and well established trends. For example, a long term trend has been to treat children as having autonomous rights as opposed to being chattel that are owned. Rejecting the use of a paddle in schools for discipline is shaping up to be a long-term trend. Use of spanking as a form of discipline in the home has not become a long-term trend.

The other source of definition for abuse and neglect was individual social worker’s biases. These should never be the basis for defining abuse or neglect because that would mean that someone’s entirely subjective belief could result in the removal of your neighbor’s child, of my child, or even your child. What constituted a dirty home was very different between each worker. What constituted physical abuse differed significantly also. In my county, anytime physical contact resulted in a visible mark, then that was physical abuse. This tended to include even red marks that would clear up after a few hours from a swat on the buttocks. In other counties, bruising was required.

I know this is a generalization and many may say it an unfair one, but from my experience a significant number of person drawn to the helping profession of social work had turned their own abuse and neglect into motivation to make a difference. This is fine and admirable. However, it can also be a barrier. It is a barrier when one consciously or subconsciously defines the terms they use in their work by their own personal experiences. It is a natural and human thing to do so I do not mean to insult anyone. Rather, I point it out to stress how important it is to develop uniform criteria that defines abuse and neglect in Kentucky.

For those wanting to see the full report:
Report by the Office of Inspector General

Sometimes good guys finish first!

Sorry for the absence - hopefully it was noticed! Last week involved a hearing in a rather intense custody battle and I have been digging out my desk these past days. My opponent inspired this prior post. True to his/her form, opposing counsel took every opportunity to mischaracaterize records admitted into evidence and statements of witnesses that had left the stand just minutes prior. It truly was a heroic effort at obfuscation on his/her part.

Thanks to God that the barrage of befuddlement fell on deaf ears. My client won the return of his/her child. I am truly sorry though that the child’s pet remains a hostage out of state making it clear that the other parent’s goal was more about revenge and control than about what was best for the child. This base aspect of family law a huge barrier to achieving justice. I’m just glad that it is not an insurmountable barrier because I believe justice was served in this matter and that those attorney’s who pander to pettiness often do not prevail.