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.

More with less

Kentuckians, do not fret about yesterday’s news about a budget shortfall. State workers have gotten so good at doing more with less that they surely can do everything with nothing. Because of this miraculous ability to cut costs year after year, even in the face of the risings costs of resources, Kentuckians need not fear reduced services. (By the way, it is a closely held secret that state workers have it so good and enjoy their jobs so much, they would keep working even if they did not get paid at all.)

As an example of just one agency, we do not have to worry about increased incidences of child fatalities because the Cabinet for Health and Family Services can handle more investigations while strippng away 3% of pure waste from their budget. No worries about hit and run investigations that could result in children being removed unnecessarily. Those social workers can be just as thorough or even more thorough without ever missing that 3%. Remember, they actually only work because they love their jobs!

We should just rejoice that there will be no increase in taxes! Let’s face it, its just poor people who will feel any potential consequences of budgetary reductions. Those poor people don’t pay their fair share in taxes anyway. This is exactly why we need expanded gambling in Kentucky. Seems to me that we could recoup some of that welfare money we pour out by setting up gambling kiosks in impoverished neighborhoods and by homeless shelters that will accept those electronic food stamp cards. Everyone knows poor people are poor just because of their own poor choices. This way we just allow the state to benefit from their propensity to throw their money away.

Actually, now that I think about it, that kiosk idea is a great idea because there is bound to be an upsurge in homeless folks with all the home mortgage foreclosures. I bet all the extra revenue generated from targeting poor people with expanded gambling opportunities could offset the special tax treatment Ford Motors needed. There might even be enough to help set up a few soup kitchens or find more foster homes for the poor people’s kids (let’s not be heartless after all).

Just remember, the gambling kiosk idea is MINE! I’m going to get right on patenting and trademarking them now.

Governor Beshear - pick me!

The ingrained culture and complex blend of regulations and underfunding mean Governor Beshear needs to pick just the right person to fix the problems described in the Hereald-Leader article titled “Central Ky. has worst record” . At the risk of appearing immodest, I am that person. Who better than someone who has worked inside the system, seen the problems first hand, and also has the educational background to put that into the larger context? He needs someone who can take a pragmatic and grounded approach rather than simply picking a traditional politcal ally (but hey, I did vote for him!). The only challenge is that I need one of you good folks that actually know the Governor to appoint me. I am guessing he will not be returning my phone calls. So, if one of you is in the Governor’s inner circle, let him know that I can fix the problems plaguing the Cabinet. It is going to take an absolute change in that culture and not just a new initiative here and a tweaking of the policies there, but I will pull it off for him. Call me!

Child Protection in Kentucky part 7

Is this Heral Leader article about child protection workers just pointing out a few bad apples or is this just one clust of problems that permeate the culture of the Cabinet? Consider this prior post of mine and a few others entitled Child Protection in Kentucky part 1 through 6.

Here’s a hint if you don’t want to go back and review all of the prior posts: these problems permeate the Cabinet making it so much tougher for the many good, compassionate and ethical workers to do their job.

A chance to practice

This article from today’s Herald Leader on The W loosening strip-mining regulations provides a perfect opportunity to show your patriotism and practice denial. Just try repeating this mantra: “Stip mining is good. More stip mining is better. No eastern Kentucky communities in the ‘hollers’ will be harmed by dumping debri in their streams. Flattened mountains are good: they allow more sunlight into the hollers. They can be replanted with non-indigenous plant species that local wildlife, such as deer and elk, will not eat but that grows fast to cover the scarred, barren landscape. Flattened mountains are good for the economy - you can build stip malls on the stip mines and boost the economy. Strip mining good.”

If this does not help right away, take two Xanax and keep repeating it. After awhile, you will feel so much better about The W making it easier for strip miners to maximize their profits and do less to protect the environment.

Dubya Deserves Denial

Ordinarily I would jump right in and take the opportunity to criticize The W, but when I read this article in today’s Lexington Herald Leader entitled “How they keep Bush from seeing protests” I had to come to The W’s defense. Lawsuits about first amendment free speech rights aside, this is really just a story about a man and his denial. The W’s folks have a comprehensive written plan to keep him from ever having to see protesters. So what! Let’s face it, we all partake of denial. To a large extent, denial is a proud principle which keeps our country going; keeps us strong! Who among us would want tangible reminders of our most stupid blunders? Leave The W alone!

Skyrocketing deficits, global warming, dependence on oil, health care and insurance, the increasing gap between the ultra-rich and the dirt poor, gays in the military, drilling in the artic, social security, the death penalty as practiced in Texas, torturing enemy combatants, and Lindsay Lohan all speak of our capacity at denial. My own denial involves weighing about 1/8th of a ton (short ton rather than the English tonne) but still indulging in ice cream as if an artery won’t clog off any second now. Our culture’s love-hate relationship with all things addictive is perpetuated by denial and advertising agencies are plenty grateful for that fact. We love denial.

So, why would we deny denial to The W? It is simply un-American; a tactic worthy of the Taliban. We had enough respect for The R (Ronald Reagan) to allow him denial about the whole trickle down economics thing. Heck, I knew that the only thing that ever really trickles down from the rich fella at the top of the hill is his pee, but I sure did not try to rub The R’s face in his miscalculation. Look further back and past President’s were given wide latitude in denying doings of badness. It used to be that the media looked the other way on such foibles as infidelity or well-intentioned misleadings - especially during times of war.

I guess the tide on presidential denial really turned with The Bill (Clinton that is)(Actually it began with The D___ (Richard Nixon), but some of my readers may not have been alive back then and would miss the reference - so I will practice a bit of denial and say it started with The Bill). Why wouldn’t we allow him the simple self-delusion of fellatio not being “sexual intercourse”? After all, on a purely technical level he was accurate. It has just gone down hill from there. Now we seem set on making The W look at all sorts of blunders. All I read about are subpoenas, threatened investigations and critical reports. Even the hand picked conservative Supreme Court is telling The W to back off with his terrorist tribunals. How in the world is The W supposed to get his denial on with this cacophony of critiques?

Now, in today’s confrontational culture, even when The W tries to do something good, like save millions of Medicare dollars, he still gets flack. Don’t believe me? Just take a gander at this scathing critique of the new Medicare directive by LawReader. Sure, LawReader is right that the most likely result is that poor patients will get stuck with the bill that Medicare refuses to pay. Sure, in this anti-litigation culture it would be hard for those poor people to successfully sue to make the negligent party compensate them for their damages. Sure, medical providers are so necessary they can dictate the terms of any consent so that the patient has to agree to pay for any charges not covered by Medicare. SO WHAT! The W does not need to be plagued by these petty concerns. He has a country to run and denial about such details allows him to stay efficient and focused on winning this war on terror before the next election. That is the important thing here and those pesky protesters would just get in the way.

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.

How much is too much?

This article regarding Steve Beshear and the legal fees associated with the demise of Kentucky Central Life Insurance Company is likely the first of many on this topic. The article is focusing on the ramifications for Steve Beshear’s bid for Governor. There may be some mileage for that purpose in the story of the millions of dollars Beshear’s firm, Stites & Harbison, charged. The real lessons to be learned from the numbers is not political though. The H-L reports:

Kentucky Central by the numbers
Just before Kentucky Central Life Insurance Co. collapsed, it had built itself into a conglomerate including TV and radio stations, citrus groves and hotels, in addition to the nearly $50 billion worth of life insurance policies it had sold. It’s little wonder, then, that its dismantling would spawn a host of costly lawsuits.
——————————————————————————-
756
Employed by Kentucky Central Life Insurance at its peak
——————————————————————————–
466,784
Total number of life insurance policies at Kentucky Central’s peak in 1992
——————————————————————————-
13
Subsidiary companies held in 1993
——————————————————————————–
44
Separate lawsuits occurring simultaneously at the height of liquidation in the mid ’90s
——————————————————————————–
103
Different law firms paid by Kentucky Central between February 1993 and March 2006
——————————————————————————–
$79,601,030.63
Paid, in total, to legal, accounting and consulting firms
——————————————————————————–
$40,914,503.79
Paid by Kentucky Central to law firms during that span
——————————————————————————–
$21,170,543.57
Paid to Stites & Harbison, Steve Beshear’s firm

Nearly 80 million dollars is a tremendous amount of money. I suspect at least a substantial portion of those fees could have been eliminated resulting in better pay outs to the consumers most intimately affected by the insurer’s collapse. No, politics is not the main story. The main story will be a critique of the economic efficiency of biglaw. The questions that should be raised include: What value was added for the Department of Insurance through Stitesand Harbison’s representation? Was the value added for the state more or less than the $20 million spent? Was there any discussion up front about value and expected outcomes or did the Department just turn the firm loose to bill whatever hours they saw fit? Was the firm’s strategy driven by billable hours or driven by maximizing value to the client (the Dept. of Insurance)?

There is a presumption in dealing with large businesses that the bigger the law firm and the higher the hourly rate, the better your representation will be. This story gives the opportunity to challenge that belief. While there are some incredibly experienced attorney’s in biglaw, there are also some incredibly experienced solos. One obvious difference between the two is that there is huge overhead in operating a large law firm. A second difference is that the client has little awareness or control over what attorney actually does the grunt work involved in the case. With a small firm, you form a relationship with the person or persons who actually handle your matter. Large law firms do carry political clout and have tremendous networks of influence. Does that change the result in the courtroom? I suppose it occasionally does. Is it worth the additional $150 to $250 dollars per hour charged? Because one is never certain when that influence might come into play or to what extent, I suggest it is not worth the additional cost. So, what big business is left paying for is the really swanky offices (marble, mahogany, great view of the city, etc.). I have been in those offices; they are really nice.

Golly, the US Constitution is on a roll!

The H-L ran this story about unconstitutional searches and seizures. In prior rulings, the Supreme Court had left open the possibility that a passenger in a car was not actually “seized” by the police when stopped because they were theoretically free to continue on their merry way afoot. Basically, one of those legal fictions often engaged in to try and square the results with the law. If a passenger is not “seized” then they are not under the protection of the 4th Amendment. Now, you tell me, if you are riding in a vehicle that is pulled over by the police, and you open your door, get out, and begin walking down the road - what exactly is going to happen?

The big surprise here is that it was an unanimous decision by a relatively conservative court. Once again, you are probably thinking that a bad guy got away! Ask yourself, how many innocent people are you willing to send to jail in order to insure every criminal ends up there? Now ask yourself if you are willing to be one of those innocent people? The point is not that this guy got away with bad stuff - the point is that this decision makes subjecting an innocent person to search, seizure or other bad stuff is a little less likely now.