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However, in a recent as yet unpublished case from the Court of Appeals for Kentucky, K.H. v Cabinet, issued on December 22, 2011, the Cabinet has run into a limit on their power.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

Best Practice in Dependency, Abuse & Neglect Matters

I have written criticisms in here about practices by the Cabinet that I find unsettling and sometimes that I abhor. I have also written defenses for the Cabinet because of the monumental tasks they are required to accomplish with such limited resources. Both of these positions are open to being misconstrued and misapplied. Yes, there are some real concerns in the practices of many workers and supervisors in the Cabinet and which are fostered on up the chain of command. There are some significant systemic problems as well. However, if you find yourself in the unfortunate predicament of having the Cabinet for Health and Family Services, Department of Community Based Services (what a mouthful of a title – I feel sorry for the folks who have to answer their phones) in your life, the single best approach is to keep a mindset of cooperation; avoid antagonism. I am writing this to correct any idea that I inadvertently promoted that being adversarial with the Cabinet is the way to win your case (I mean adversarial in the sense of ones attitude rather than in the sense that the court process is an adversarial process). Those criticisms are designed mainly for a global change in the system through political action; they are not meant to fuel a personal vendetta in an individual case.

Of course it is human to want to lash out in anger at this behemoth of an agency that does not seem to care or at workers who do not seem to understand. Of course it is a tragic and trying time when your child has been taken from you and young folks fresh out of college and are not yet fully raised themselves are telling you how to raise your children. Take all of those normal feelings, go in a closet, grab a thick pillow and scream every bit of outrage into that pillow where no one can hear. After that, whenever you are interacting with the Cabinet or with your children, you remind yourself that these folks are there doing what they believe is right for your child. That is actually the case about 9,999 times out of 1,000 or more (the key word is “believes”). In fact, the vast majority of the time they are at least hitting the paper that has the target printed on it even if they are missing the target itself, let alone the bullseye.

So, after screaming it out, you need to take a good, hard look at yourself regarding how the Cabinet says you screwed up. Do this for your child because if the Cabinet is close to right, then you owe it to your child to admit the shortcoming and fix it. Yes, they may have gone about things the wrong way, denied a Constitutional right or two, misrepresented what you said or sometimes flat out lied about you (they tend to justify the means by the end and the phrase “best interest of the child”). Those are NOT to be your focus unless you want to increase your chances at a termination of your parental rights down the road. Your focus is getting your child back in your home by becoming a better parent (we can all be better parents, so take the chip off of your shoulder when I say that). Don’t just play the game; honestly consider what they say and find how it fits. Believe me, they have enough work to do without needing to take your child for no reason at all or to just mess with you. Sure, they may have grossly overreacted, but that does not change that they picked up on a legitimate issue.

Now, I am not saying to admit to things that, after reflection, really are not true and this advise mainly applies to after an adjudication or stipulation has occurred (before that: be careful what your say, talk to a lawyer if you can, but still be kind). I am surely not telling you to say or do something your attorney has advised against. I am talking about a mindset and a cooperative approach that will increase the likelihood of the return of your children. Be kind and respectful in talking to your worker, avoid blaming them or others and never cuss or threaten them.

Why? you ask. Two reasons: 1) it is the right way to treat folks, even those who seem to be harming you; and 2) it is the pragmatic thing to do when faced with someone far more powerful than you. For a variety of reasons, Cabinet workers tend to take displays of anger towards them from parents as signs of denial and defiance. They equate denial and defiance as someone who is not going to take good care of their children and a likely sign of emotional instability. They want compliance, not consternation. I know, you are right, they are supposed to be trained professionals who understand the grief process and wildly swinging emotions that kick in when one’s family is ripped apart. Just forget about that. Being right is not going to get your children home. All you will achieve by pointing out the individual flaws of your worker is someone with a great deal of authority who believes you are a lost cause. Again, I am not saying to just parrot back to them everything they say, but if they say something that ticks you off, just say “You know, I really want to understand what you are saying there” or “I really want to spend some time thinking about what you just said” and then work it through later, somewhere else, with someone safe.

This is also not to say that you don’t fight for your rights. It is just a different way of fighting. Let your lawyer fight using the tools of the system in court. Fighting does not have to involve emotional attacks. I have represented many people in dependency, neglect and abuse actions. Those that get their children back home the quickest are the ones who take the approach I outlined above. Those that are determined to right the wrongs in their case usually take the longest to see their children return. Those that are adamant about beating the Cabinet are usually the ones who lose their children for good. Remember, the Cabinet has the overwhelming advantage because the statutes give them the upperhand, because they have far greater resources that you can imagine, and because the judges believe and trust them. You can stand shaking you fist and yelling about the injustice all you like, but that approach, in my experience, always makes justice more elusive.

As an aside: there is one supervisor with the Cabinet who is terribly fond of telling parents from whom she has removed children or terminated rights that “it isn’t personal”. I think of her as the Vulcan of the starfleet Cabinet. There is nothing more personal than having one’s children taken away. I think it is her way of constantly insulating herself from the inevitable pain that goes with her chosen profession. I also think she is trying to tell parents not to hold her personally accountable for the decision; that she is just a cog in the wheel. She’s wrong on both accounts. But, if you have this supervisor or another who uses “it’s not personal” as their catch-phrase, let it remind you that your personal feelings are not safe in their hands. Find someone for whom it is personal in the sense that they care, have compassion, but can still confront you when your are wrong rather than just commiserate to share those personal feelings with.

“Reasonable efforts” has real meaning

A recent decision of the Court of Appeals illustrates a an omission of the Cabinet for Health and Family Services that seems all too common. In the unpublished opinion, M.G.F. II v. CHFS, 2006-CA-002093-ME (March 21, 2008)(NOT to be published), the Court remanded an involuntary termination of parental rights case because the Cabinet failed to evidence reasonable efforts to reunite the non-removal parent, the father. I have often seen this phenomena when children are removed from one parent and the non-residential parent either lives far away, is uninvolved, or has some “issues”. The Cabinet focuses on reunification with the parent of removal instead of devoting those efforts towards both parents. I suspect this is not so much an intentional omission, but more of a systemic problem.

Such a circumstance of divided households is one case on the worker’s caseload even though there are two separate parental residences. If a worker only gets credit for one case, what incentive is there to provide services to two households. That is double the work for the credit of one family. With caseloads stretched beyond reason and the government unwilling to sufficiently fund child protective services, the pressure to focus only on the residence of removal is significant.

Further exacerbating the problem, unless it has been changed since my time, the computer system used by the Cabinet (TWISt: The Worker Information System) automatically makes the parent the child was removed from active as well as the children. A non-residential parent is not put into the referral screens because no allegation are made against them. TWISt captures data, including face to face contacts, with each active individual in the case. This information is used to generate reports to measure compliance with Federal regulations that tie payments of block grant monies to Kentucky. The reports are also used to measure an individual worker’s performance. TWISt has no idea if these face to face visits actually occur; it is an honor system that expects employees to input accurate data even if it is going to hurt their employment situation.

One way to prevent low numbers of contacts, but still be technically truthful, is to forget to add a parent who does not live in the home of removal as an active individual. This means there is no tracking of services to that person. Whether this occurred in MGF’s situation is unknown, but the point remains.

Now, the factual background provided in the MGF case do not show if the scenario I laid out above applies. All the case reveals is that the Cabinet did not put forth substantial evidence that they provided services to the father, MGF, to assist him in obtaining custody of his children. I make the inferential leap that if such evidence was able to be offered up, it would have been.

MGF is no father of the year by any stretch. He allowed a couple of years to pass with only four phone calls to his children. Even when they were moved to within 20 miles of him, he did not go visit them. Regardless, the Cabinet was under the duty to provide services to help him get up to speed as a father. No evidence of this duty being discharged was entered into the record and so the court remanded the case for further proceedings.

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.

Improving Child Protection in Kentucky Postscript (or – a moment of silence, please)

The title of this article from today’s Herald Leader was a bit too prophetic to be accidental: “Child protection revisions all but dead“. The impetus for this bill began back with the Office of Inspector General’s report many long months ago. Let’s parse through this article:

A bill that would have opened Kentucky’s child protection courts to the public on a limited basis was rejected Wednesday by the House Judiciary Committee. And measures that would improve procedures in child protection courts and require ethics training for social workers have been procedurally buried.

Ethics training? Obviously too radical an idea.

Rep. Susan Westrom, D-Lexington, who sponsored a bill on training social workers, said that officials from the Cabinet, which oversees the system, want to kill it.

“They are trying to keep me from creating a system of checks and balances,” said Westrom.

Checks and balances placed on the government. . . hmmm – where have I heard that idea before?

But Rep. Robin Webb, an attorney, said she didn’t think the bill went far enough to protect information about children whose futures are being decided in the courts.

“The child’s interest is my No. 1 concern,” said Webb, D-Grayson. “I don’t want it in my county.”

I’m confused – does she not want the ethics in her county, the checks and balances . . . maybe she means that everyone else’s number one concern is promoting child abuse, hmmm. Nope, still confused.

And Rep. Brent Yonts said he was concerned that the legislation would allow people in the community to spread information they heard in hearings.

“How do you keep the town gossip from talking?,” said Yonts, D-Greenville.

Heaven forbid that the town gossip would wander into court and discover that the neighbor’s children were removed. The absence of the children wouldn’t have tipped him off. The police cars and social workers taking the kids to the cars wouldn’t have tipped him off. Oh, thank God we can now keep the removal of the children a secret so people won’t talk.

But Westrom said that legislation is in jeopardy because it calls for increasing the fees for court-appointed attorneys for children and parents for the first time since the 1980s. House Bill 151, drafted by the Cabinet’s Blue Ribbon Panel on Adoption, will be sent to the House Appropriations and Revenue Committee, which Westrom said could be “a graveyard for bills.”

That was a close one. If these parents started getting court appointed attorney’s that were compensated as well as those representing criminals in federal court, they might start challenging the Cabinet more. We woudn’t want them getting ideas of seeking legal protections now would we?!

Rep. Stan Lee, R-Lexington, said that Family Court Judges in Fayette County were against House Bill 151, so he voted against it.

I know this is untrue. Mr. Lee shouldn’t make such sweeping and inaccurate statements. There was a concern about the practicality of having attorney’s present and representing parents at the temporary removal hearing, but still have that hearing within the statutorily mandated timeframe. Mr. Lee, though, makes it sound like ALL the judges were against the ENTIRE bill and that is patently false. Besides, does Stan Lee ONLY represent the Family Court Judges or is he supposed to represent the community?

In regard to a third bill, Cabinet spokesperson Vikki Franklin said Wednesday that training curriculum for social workers is already sufficient. She said that a bill sponsored by Westrom would be costly and decrease the amount of time social workers could spend on services.

It never was sufficient before and from what I have seen and heard, it still is not sufficient.

However, Westrom says the additional training called for in her legislation is necessary and won’t cost the Cabinet money.

“The Cabinet would rather pay $425,000 to settle whistleblower lawsuits than train their social workers,” Westrom said, referring to a recent case in which former social workers said the Cabinet mishandled cases.

Did I mention that Susan Westrom has a Master’s degree in Social Work.

Meanwhile, Cabinet officials say they have made internal changes that address the problems involving improper removal of children.

And those measures are . . . ? Oh, that must be the information that must be kept behind closed doors to protect the children’s privacy.

Child Advocate David Richart said yesterday that the Cabinet’s resistance to change was the basic reason the reform legislation failed.

Resistant to change is such a harsh criticism. Let’s reframe that to being glad that the Cabinet is consistent and predictable.

Words to give pause

Blogger’s like to have readers – otherwise they would just keep a journal and hide it under their mattress. So, when someone says “I read your blog”, there is usually a certain gratification. However, when that person is a judge who tells you this in the midst of a pre-trial in a case involving a frequent topic of your blog, then “I read your blog” gives pause rather than gratification. That happened recently and in that pause, I considered the risk versus benefit of blogging – at least on topics that I have a strong opinion about. Did I harm or help my current client with my postings? Did I offend him/her (since many of my posts are meant to prick the minds of people enough to get them thinking about a topic)? Was the judge informed or did my shared experiences contradict his/her own? Did I at least convey that I care deeply about the issues, even if the judge’s perspective is at odds with my own? I cannot answer any of those questions and regardless of the answers, there is no going back. Once something is posted on this world wide web, consider it immortal. The only thing I could do was review some of my prior posts and see if, in retrospect, I have been balanced and fair.

In reviewing my posts regarding the Cabinet for Health & Family Services, I recognized that I have advocated strongly for increased funding and other systemic improvements. What I have not touched upon much is the individual responsibility of a person who undertakes the duties of working as a social services worker for the Cabinet. It is entirely true, as many of my prior posts state, that chronic underfunding, understaffing and other circumstance beyond the individual worker’s control perpetuate systemic problems. It is also true that these systemic problems influence the individual workers in how they perform their duties. However, I have seen workers who performed with integrity despite the pressures and I have seen other workers take the short cuts. My point is that I have not intended to make excuses for individual workers to neglect their duties by engaging in falsification of records, failing to make reasonable home visits to clients and foster homes, failing to perform thorough investigations, jumping to snap conclusions, engaging in lazy black and white thinking, perjuring themselves in court, or any of the other short-cuts I have seen taken.

There is a cost to maintaining integrity and providing quality services in spite of the system’s problems. One cost is time. I routinely worked sixty hour weeks and many times much more than that and barely stayed caught up so, I know the good workers at the Cabinet must be doing the same. So many nights were spent responding to a an emergency page or phone call. Another cost is emotional. I had many sleepless nights thinking about people in my care as well as reviewing the tasks left undone and I know many workers go through the same struggle. Despite the costs, those workers with integrity care deeply and recognize that they are making life altering decisions. There is no room for short-cuts with that.

While this post lacks the satirical quality of some recent ones and has that sappy, soapbox quality that can be such a turn-off, I wanted to be sure to explain that there is not a simple equation of “systemic problems” = “problem worker excused.” Instead, I advocate for fixing the systemic problems with the Cabinet and also call upon individual workers to maintain integrity and quality despite the obstacles. Your families deserve no less. If you are simply putting in time and getting by for that paycheck, please find another career.

And, as for the perils of blogging out here in the public realm where even judges happen across my musings, I am quite sure that it is not the smartest or most political thing for an attorney to do. I am sure it could cost me clients or job opportunities. Perhaps it could sway a judge against a client or cause a hundred other bads, but speaking out for one’s believes has never been an activity for the timid. I write this for the hope of the one good that it might bring and that hope is sufficient to give me the courage to put my beliefs out there where you can consider them. Who knows – maybe I’ll even get it right occasionally!