Help is available for foreclosures

Since financial matters impact families so profoundly, and none more than the threat of losing one’s house, I encourage you to take a look at this post on my Kentucky Bankruptcy blog if this is a stress facing your home.

The Cabinet for Health & Family Services encounter a limit on their authority

The Cabinet for Health and Family Services has long enjoyed a tremendous level of deference by most Kentucky judges. In my experience, both as a prior employee of the Cabinet and now as Court Appointed Counsel for parents and Guardian ad Litem for children, I have been concerned that the Cabinet’s reach lacks the ordinary checks and balances that limit other governmental agencies. One way this unfettered power has often played out has been for social service workers to insist that parents sign “Prevention Plans” or “Aftercare Plans” that the worker devises.

These plans, containing whatever restrictions and guidelines that worker sees fit to include, create a real catch 22 for parents: if they refuse to sign them, then the Cabinet threatens to file an abuse or neglect petition against the parent and if the parent does sign them, then the worker will file an abuse or neglect petition for any failure to adhere to the requirements of the plan. The threat of abuse and neglect action intimidates nearly every parent into signing, especially when the worker explains that their children may be removed from them. That is a pretty heavy hand to play to coerce the signing of a plan that the parent likely does not agree with but may be held to regardless.

However, in a recent as yet unpublished case from the Court of Appeals for Kentucky, K.H. v Cabinet, issued on December 22, 2011, the Cabinet has run into a limit on their power. In my opinion, this is a very important case and places an essential limit on the Cabinet to insure that parent’s rights are protected while not impairing protections for vulnerable children.

The language of the Court is worth quoting here:

The Cabinet’s position opens the door to a potentially wide-reaching intrusion by the state into the parent-child relationship. If the Cabinet can show that K.H. neglected her children merely by refusing to follow the Cabinet’s recommendations, then it could also seek to enforce other views about proper parenting in a similar manner. While the state has a compelling interest to protect its youngest citizens, state intervention into the family between parent and child must be done with utmost caution. It is a very serious matter. See M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 851 (Ky. App. 2008), and V.S. v. Commonwealth, Cabinet for Family Services, 194 S.W.3d 331, 335 (Ky. App. 2006). See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although these cases urge such caution in the context of termination of parental rights, the parents’ fundamental interest in the care, custody and management of their children is not diminished by lesser state intrusions into the parent-child relationship. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).

We must also be mindful that an adjudication of neglect carries long-reaching consequences. This finding may be used against K.H. in subsequent proceedings, including proceedings to remove the children from the home or to terminate her parental rights. A finding of neglect may also carry a personal or social stigma far beyond the limited circumstances involved in this case. Thus, the courts should be very careful about making such a finding merely out of caution.

Furthermore, when the Cabinet seeks to compel a parent to comply with its directives, the courts must be vigilant to protect against over-reaching of that authority. It is not enough for the Cabinet to show that K.H. would be well-advised to agree to the terms of the Aftercare Plan. The applicable statutory definition requires a finding that K.H. created or allowed to be created a risk that an act of sexual abuse will be committed upon the children.

The Cabinet can no longer base a finding of abuse or neglect merely on refusal to sign a plan and parents should not cave to the threat of legal action for mere refusal to sign. Instead, “the risk of harm must be more than a mere theoretical possibility, but an actual and reasonable potential for harm.” Make no mistake: I want parents to be held accountable and for the Cabinet to be able to keep children safe from abuse and neglect, but they cannot have unchecked power and discretion in pursuing their mandates. Parents do have rights in this country.

Foreclosure Defenses: Round 1

Reblogged from Kentucky Bankruptcy Law:

First, a shout out to Ben Carter, a former classmate of mine and one fine presenter with a flair for fashion. Thanks Ben for helping make sense out of foreclosure mayhem.

So much has been written about the dilemma of massive numbers of foreclosure actions that I am hesitant to dive into the fray. However, even though many would like us to perceive the economy issues as having resolved, I think the foreclose crisis will continue with us for some time.

Read more… 497 more words

This is not directly a family law matter, but few things threaten the stability of the family like the threat of losing one's home. So, I thought it worth sharing over here also.

Bankruptcy is also just a beginning

I know, not terribly original of me, but I realized some similarities in how folks looked a bankruptcy as an end just as many look as divorce as an end. So, I wrote a post entitled “Bankruptcy: Just the beginning” on my other law blog. Hope it is helpful because divorce and bankruptcy happen together so often.

Domestic Support Obligations and Bankruptcy

Bankruptcy of an ex-spouse after the entry of a divorce decree (the dissolution of a marriage) can have substantial implications of obligations owed by that ex-spouse to you.  I’ve written a post regarding domestic support obligations in Chapter 7 as compared to Chapter 13 bankruptcy and I encourage your to click over and read it since I am not going to go into details here.  What I do want to reiterate here is that it is important to know how child support, alimony (maintenance) and equitable distributions of assets are treated in bankruptcy.  

In order to insure you do not end up getting paid only a percentage of what is owed to you from distribution of marital assets, be sure to get your share of assets right away rather than allowing for payment over time.  The most common example is where one party wants to keep the marital residence after the divorce is final.  They agree, then, to pay their soon to be ex-spouse a set number of dollars of the equity of the house over time in exchange for retaining the house.  Later they go into Chapter 13 bankruptcy and suddenly, you only get 10% or less of what’s owed to you and they get to keep the house. 

As hard as it may be, the more financially sound thing to do is to insist of the property being sold or refinanced and realize your share BEFORE ever quitting your interest in the property.  Also, just because something is called “child support” or “alimony” does not make it non-dischargeable.  The bankruptcy court can make its own determination based on the facts of the case as to whether it is actually an equitable distribution of property under the guise of alimony or child support, so it is risky to try and realize your share of equity by increasing child support or getting alimony.  

Need debt relief? Beware of advertised debt solution centers

Check out this post at Kentucky Bankruptcy Law to avoid being ripped off.

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.

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.

John Adams said it better

Thanks to the US Post Office, I found the following quote that said my point in my prior post far more concisely:

“Let us dare to read, think, speak and write.” John Adams, 1765.