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.

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.