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However, in a recent as yet unpublished case from the Court of Appeals for Kentucky, K.H. v Cabinet, issued on December 22, 2011, the Cabinet has run into a limit on their power.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.

Stall Tactic – Involuntary Termination of Parental Rights

Kentucky sets forth the grounds for a court involuntarily terminating parental rights in KRS 625.090. The statute basically gives the essential elements, all of which much be proved by the heightened standard of “clear and convincing” evidence: the child has been abused or neglected (and there are three wasy to show this) and that it is in the best interest of the child for the parental rights to be terminated (interestingly, the likelihood of the child actually finding a permanent home through adoption is not supposed to be considered in determining “best interes”, but that is a topic for another day).

After laying out those two essential elements, the statute provides a laundry list of other things, one of which must also be found to be true. Supposedly, this list is to put the breaks on a little to keep parental rights from being terminated too easily. Unfortunately, built into that list is one item that is not ulitmately within the parent’s control and is a strict liability type provision. In other words, it is either true or not and there is no consideration for intent or mitigating circumstances. The provision is KRS 625.090(2)(j). Where the legislative intent appears to be to put on the brakes, provision (j) disables those breaks and leaves parents careening toward a crash.

How this plays out is if the Cabinet for Health & Family Services worker and surpervisor wishes to do an involuntary termination of parental rights with a parent, but that parent is basically doing fair, they stall the case. Most of the families they deal with are lower income and less educated with multiple challenges facing them. Even in families with great resources, one can find issues and challenges pop up. It is even easier to find such issues when the families are also facing stressors related to socio-economic status or who are less sophisticated in dealing with government agencies. So, the Cabinet highlights those challenges. For example, the parents long term friends may have brushes with the law or be involved in drug use or alcohol abuse. Even if the parent does not have those challenges, then the whole guilt by association sets in and the Cabinet demands they give up their friends creating isolation that is not readily filled (by the way, from my experience some workers partake of illegal substances or drink to excess at times and there is no mandatory employee testing for Kentucky governmental employees, but that is also a topic for another day). Perhaps the worker is concerned about an unsafe neighborhood and they demand the parent move to a nicer one. Or, perhaps the parent has a criminal history of minor, but frequent criminal incidences and they tell the parent they want to see a pattern of stability over time – let’s say twelve (12) months. The list can go on, but before anyone realizes it, they are up against that 15 of the last 22 months from (j).

So, you say, what’s the big deal? Well, if one examines all of the other items (a – i) in list, only one of which needs to be proven, (j) stands alone. The other items all require a showing that the parent has done something horrible or continues to really mess up and is not caring for the child. However, (j) is a strict timeline and the parent could actually be doing okay during that time, but (j) still gets them. The other items show some kind of mental status or intent on the part of the parents: they are either negligent which is requires a state of mind (mens rea)for latin geeks) or act willfully. Item (g) even expressly says that the failure in it must be for reasons “other than poverty alone.” Bu, item (j) requires no state of mind whatsoever; it just happens. In all the other items (a – j), the parent has some level of control over whether the even comes to pass whereas in (j), unless there is an active judge, they are at the mercy of the Cabinet.

So, this parent who is not messing up royally, but that is also not blowing people away with their progress, loses all the safequards that the statute is supposed to afford because the Cabinet structured the case that way. The Cabinet worker can simply drag the case along, picking at issues enough justify their “cautious” approach and then suddenly say, “Oh, we’re going to terminate your parental rights – see ya’ in court and have a nice day.”

The only way to combat this stall tactic is to be active in getting the case before the court on a regular basis. Insist on having reviews every three or four months and get the progress, or lack thereof, on the record. For attorney’s representing parents, it does mean more work and it does mean the County Attorney, the Cabinet, and maybe the Judge being frustrated at filling the dockets up. For parents, it means speaking up both to the court and to your attorney. For everyone, it means remaining focused on confronting legitimate issues head on and in a timely manner. Otherwise, this loophole in the involuntary termination of parental rights statute can ensnare the unwary and once again, where Constitutional protections should be at their height, they are found at their lowest ebb.

Accountability by the courts

A decsion rendered by the Kentucky Court of Appeals on May 16, 2008 reveals that the appellate courts are prepared to hold the Cabinet for Health and Family Services accountable in termination of parental rights cases. There are very few published opinions in Kentucky reversing involuntary terminations initiated by the Cabinet. This, I believe, is because the trial court judges have tremendous discretion in their findings, there is no jury, and the statute (KRS 625.090) tilts in favor of the petitioner (usually the Cabinet) in important ways.

In this case, M.E.C. v. Com., 2007-CA-1904-ME, a toddler and an infant were removed from their mother when her car was shot at in a bad section of Bowling Green. The mother had been residing in a shelter with her two little children and had claimed to be going to the grocery. The children were left with someone at the shelter, but because she had previously tested positive for cocaine, the Cabinet assumed that she had gone to load up on illegal “groceries” on her little solo jaunt and that is why her car had been shot. Apparently, this set of circumstances was enough to convince a judge to remove the children.

After removal, mom had some other unfortunate events occur, including a car wreck that left her hospitalized for two months due to a brain injury. She also had a few stints in the pokey, but these jail stays were characterized as short in duration. Aside from these situations, she visited regularly with the children. Here the Court reminds us that incarceration alone is not grounds for termination of parental rights, but the Cabinet tried some creative reasoning to get around that holding.
The case sites other circumstances worth reading, such as mom’s attempts at treatment on her own and an incidence where the Cabinet did not provide coverage when the regular worker was on extended leave, but you will have to read the case itself for those tidbits.

The Court notes how serious a matter termination of parental rights is, though from my observations it is sometimes initiated just because certain statutory and federal funding bells get rung. In this case, the Court noted that: 1) the children had not actually been injured or shown to suffer ill effects from any alleged neglect, 2) no evidence that termination was in the children’s best interest was introduced, 3) the Cabinet never provided justification for changing their goal from reunification to adoption, 4) the Cabinet did not alter its case plan to address her changed circumstances when she was hospitalized, 5) the Cabinet did little to put reunification services in place, 6) the Cabinet portrayed mom as adopting a criminal lifestyle though they did not lay out exactly what the basis for that was, and 7) mom was doing everything she could to meet the case plan goals when they petitioned the court for termination. Regarding this last observation, it was noted by the Court that the Cabinet focused primarily on the past rather than on the progress she had made, like working full time and resolving the criminal charges. She had shown that substantial improvement in her parenting capacity was occurring.

Justice was served by the Court – sort of. It seems obvious from reading this case that the Cabinet screwed up, but I am certain it appeared obvious to the Cabinet that termination was the right thing. Too often I see workers with tunnel vision where evidence that contradicts their position is not considered and evidence that is weak or can be explained in other ways is highlighted as proof. This mom and these children should have never gone through this ordeal. When we get to that point, where children are kept with parents unless they are at imminent risk of serious harm or repeated harm as required in the statute (KRS 620.060), then justice will truly be served.

Systemic apathy and the attorney’s charge

Apathy is the predominate risk with judicial venues where the majority of defendants are guilty of what is alleged against them, such as criminal court or dependency, neglect and abuse court. This systemic apathy leads to the few truly innocent people who come through those courts to be shuffled along as expeditiously as possible and often being presumed guilty because they are amongst the guilty. The only way to combat this apathy systemically is through proper funding so that mandates can be met and advocates are encouraged to advocate. The only way to combat this apathy individually is through personal integrity. We need both!

For lawyers, this means engaging the political system to adequately fund the systems that handle criminal law and quasi-criminal matters such as dependency, neglect and abuse. It also means practicing law with more than just compliance with ethical rules; it means practicing with personal integrity.