Focus on the Middle East

Tue, 13 Mar 2012 15:24:44 GMT

(updated)

Upcoming event:

Palestinian Refugees in Lebanon, Montreal, 19 March 2012 [info]
- Brown bag lunch seminar.

Publications:

A Closer Look at Palestinian Refugees and UNRWA, Boston, 28 Feb. 2012 [access via PRRN Blog]
- Audio of presentation by Randa Farah at Harvard Kennedy School.

Dossier de presse: En Syrie, la médecine est utilisée comme une arme de persécution (MSF, Feb. 2012) [access]

- French and English versions available; see also videos.

"Education and Identity: The Role of UNRWA's Education Programmes in the Reconstruction of Palestinian Nationalism," Journal of Refugee Studies, Advance Access (7 March 2012) [abstract]

International Support for Reparation Processes and the Palestinian Refugee Issue (Chatham House, Feb. 2012) [text]

"Iraqi Refugees and the Humanitarian Costs of the Iraq War: What Role for Social Work?," International Journal of Social Welfare, vol. 21, no. 1 (Jan. 2012) [free full-text]

Kuwait: Bidoun Nationality Demands Can’t Be Silenced (Refugees International, March 2012) [text]

Trapped by Denial of Rights, Illusion of Statehood: The Case of the Palestinian Refugees in Lebanon, Birzeit University Working Paper 2012/8 (Ibrahim Abu-Lughod Institute of International Studies & Al-Shabaka, 2012) [text]

Tagged Publications and Events & Opportunities.

Appellate Court Holds That Social Workers Employed By The State of Washington Are Not Exempt "Learned" Professionals

Wed, 21 Sep 2011 14:13:24 GMT

Disputes regarding the application of the FLSA’s “learned” professional exemption can arise where many – but not all or even “most” – holders of a given position possess specific or substantially-job related academic credentials, but others do not. This is so due to some courts’ narrow interpretation of the learned professional exemption’s requirement that the position require advanced knowledge customarily acquired by a “prolonged course of “specialized intellectual instruction.” With the exception of a few universally-acknowledged professions such as doctors, lawyers and accountants (an industry which itself has been subject to challenge), litigation often centers on whether the requirements for an employer’s specific job are customarily based on academic instruction, or work experience. One such position is that of social worker. Recently, the Ninth Circuit, reversing the lower court’s grant of summary judgment, held that social workers employed by the State of Washington did not satisfy the exemption’s requirements. Solis v. Washington, 2011 U.S. App. LEXIS 18668 (9th Cir. Sept. 9, 2011).

Washington concerned a challenge to the state Department of Social and Health Services’ (DSHS) classification of its social workers as exempt. The district court agreed with DSHS’ position that the academic credentials of its social workers – who were required to hold a “[b]achelor's degree or higher in social services, human services, behavioral sciences, or an allied field," - were sufficiently specialized and related to their social work to establish the credential and academic instruction as a prerequisite to hold the job of social worker. In the district court’s view, the DSHS requirement that social workers have eighteen months’ social work field experience, along with the imposition of mandatory continuing education requirements, “weighed in favor of a finding of specialized training” and thus exempt status.

Reversing, the Ninth Circuit analyzed Department of Labor opinion letters concerning related positions and observed that “the ‘learned professional’ exemption applies to positions that require ‘a prolonged course of specialized intellectual instruction,’ not positions that draw from many varied fields. While particular coursework in each of the acceptable fields may be related to social work, DSHS admits that it does not examine an applicant's coursework once it determines that the applicant's degree is within one of those fields.” Id. at * 21 (emphasis in original). Because individuals with diverse academic training could hold the position, based on their professional experience, the Court reasoned that no specialized academic instruction could possibly be a prerequisite for the job. In the Circuit Court’s view, DSHS’ 18-month on-the-job training requirement further militated against exempt status because DOL regulations “state clearly that the exemption does not apply to ‘occupations in which most employees have acquired their skill by experience.’”

This narrow application of the learned professional exemption creates a dilemma for employers: namely, hire the best candidates to perform a given position, regardless of the source of their superior qualifications, or limit employees hired in job titles classified under the learned professional exemption exclusively to those holding specific narrow degree prerequisites. This concern is underscored in certain professions such as social work by the limited monies provided by funding entities to compensate employees. Absent such a “hard line stance” with respect to this formal requirement, or a very academic, lengthy training program, employers are exposed to a risk of challenge of such a classification.

Book Reviews

Thu, 13 Jan 2011 02:49:53 GMT

I plan to make a more concerted effort to highlight book reviews, both in full-text and in bibliographic form (e.g., like those that are published in newly available journals). Below are some reviews I came across recently. They can be found via a variety of sources including:

Book Review Sites:

Excluded from the Record: Women, Refugees and Relief, 1914-1929, by Katherine Storr. Peter Lang Publishing, 2010 [text]
- Posted on H-Net Reviews; use search to locate additional reviews; general RSS feed available.

Refugees, Asylum Seekers and the Rule of Law: Comparative Perspectives, ed. by Susan Kneebone. Cambridge University Press, 2009 [text]
- Posted on Law & Politics Book Review; use search to locate additional reviews; general RSS feed available.

Journals (although note that these tend to require a subscription to access the full-text):

Materialising Exile: Material Culture and Embodied Experience among Karenni Refugees in Thailand, by Sandra Dudley. Berghahn Books, 2010 [citation]
- Reviewed in the Journal of Immigrant and Refugee Studies.

Social Work with Immigrants and Refugees: Legal Issues, Clinical Skills, and Advocacy, ed. by Fernando Chang-Muy and Elaine Congress. Springer, 2008 [text]
- Reviewed in the Journal of Global Social Work Practice.

News Sources:

Climate Refugees, by Collectif Argos. MIT Press, 2010 [text]
- Article in the National Catholic Reporter.

Repositories:

The Human Rights of Non-Citizens, by David Weissbrodt. Oxford University Press, 2008 [text]
- Posted on bepress Legal Repository.

And if you would like to review a book yourself, consider one of the titles listed on the Human Rights & Human Welfare site!

Tagged Publications.

New Issues of Dev. Outreach, E&RS, EJML, J. Immigr. Minor. Health

Tue, 10 Nov 2009 16:04:04 GMT

Development Outreach, vol. 11, no. 2 (Oct. 2009) [full-text]- Focus of this issue is "Fragility and Conflict."Ethnic and Racial Studies, vol. 32, no. 9 (Nov. 2009) [free full-text]- I already posted a reference to this issue, but I noticed it is now freely accessible so here it is again! Includes "First generation decline: downward mobility among refugees and immigrants."European Journal of

loo

Tue, 21 Jul 2009 21:43:02 GMT

Just happened upon an interesting new blog ‘corbysays’ which is tackling the difficult topic of young care leavers. Its only a fledgling blog at the moment but already has some thought provoking material on it. (h/t to @waugaman) Posted in stuff

Posted in stuff

loo

Thu, 05 Feb 2009 18:26:58 GMT

Myself and another legal rep were a little taken aback to be told recently that we were ‘making a meal of it’, ‘it’ being the alleged assaults by a father upon his children by blows to the head. Not - apparently - a child protection concern because the kids, now just in double digits, don’t present as frightened. Well - ok then. This gem was from the social worker involved with the children. I say ‘case’ - there is no social work file - as said social worker has closed it. However the legal case runs on. And we sort of thought maybe, just maybe, the judge would be a bit interested in ‘it’ and might require a bit of disclosure so we could decide if it was necessary to hear evidence about the alleged assaults (social work view: ur…what for?). Pesky lawyers, what do we know about risk? Sticking our oars in and upsetting the apple cart. Clearly not every social worker has got Baby P paranoia.

Posted in stuff

loo

Sun, 25 Jan 2009 10:06:28 GMT

I’ve often read s47 reports, core assessments and reg 38 assessments which find themselves in amongst my case papers and wondered what purpose they serve other than to obfuscate questions of risk. Chatting the other week with a social worker confirms anecdotally at least that some social workers agree. These documents are ridiculously long and rather than being in a narrative form are a series of many standard questions in box format, many of which are simply not relevant to an individual case and the answers to which shed no light on anything in particular. My experience is that in reading a report one has to filter out the irrelevant data and often the key data is lost in ‘noise’. Not infrequently what should be an in depth assessment of risk is a series of reatedly cut and paste responses to unenlightening questions.

In writing a report it seems that similar problems apply - in attempting to complete the required forms (a core assessment form in one local authority is 47 pages long before the social worker has even entered any data and also has additional ‘age appropriate’ questions which change according to the d.o.b. you enter) the focus is on the questions which are required to be answered, many of which are irrelevant, and sometimes the specific key issues are buried. Different questions, risks and issues apply to different cases and the process of standardisation to me is likely to encourage a tick box mentality and to dissuade social workers from in depth analysis of the case in the round or to appreciate the subtleties of any given case in the way that an old fashioned narrative report would. The social worker I spoke to most recently was describing the drive towards the paperless system and self-populating forms so that a question answered in relation to a case in a different report would be automatically entered into the same box on the new form. A shudder runs down my spine - great idea superficially but ‘data’ changes over time and this doesn’t encourage or ensure intellectual rigour or currency of information. It doesn’t even seem to save social workers time - the complaint is that the forms take them away from actual social work.

These are the tools social workers are required to use in order to assess risk to children. For what its worth my view is that standardisation of format and dogmatic use of new technologies in this way does not encourage the independent thought and application of skill and judgment to each individual set of facts and circumstances that each individual child deserves. Thoughts anyone?

Posted in stuff

Napier

Sat, 03 Jan 2009 02:00:04 GMT

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.

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.

loo

Wed, 10 Dec 2008 09:41:29 GMT

On the way back through Paddington at the end of a day in the High Court yesterday I was not astonished to see a rather distasteful piece fronting up the Evening Standard. From reading the information emblazoned across the front page one might reasonably have formed the view that Ms Shoesmith, formerly of Haringey had personally and forcibly snatched a child from its foster carer for the simple reason that she was not of the same ethnic background as the child, and then placed him with abusive adoptive parents for no other reason than their ethnic background and without proper regard to their suitability as parents. In fact, if one read on through the whole article it became apparent that the plan for adoption had been aired over the course of a 7 day hearing and had judicial approval. The decision to remove therefore was the Judge’s decision and not Ms Shoesmith’s. The Judge would also very probably have sanctioned the Local Authority’s choice of adoptive parent.

Although it is plain that if the article is accurate there may be some real questions about the manner of removal by Haringey and probably about the effectiveness of the vetting process for the adoptive parents, the stringing together of all the various issues raised in the headline for this piece as if they were somehow directly causally related to one another and that they were directly carried out or sanctioned by Ms Shoesmith was potentially misleading and sloppy.

Whatever Haringey, and Ms Shoesmith in particular, may have to answer for - this article was media frenzy at it’s worst. Failures in the care system ought to be reported but they must be reported objectively and sensitively and without being driven by the desire to scapegoat and ratchet-up already highly charged issues for the sake of a headline. I’d like to know what caused things to go wrong in the case concerned, but this article did not help me form a sensible view about it.

Posted in stuff

loo

Fri, 14 Nov 2008 18:42:52 GMT

So many words bandied about by so many people. Big, descriptive, superlative words. Unimaginable. Horrific. And so it is. But ‘unspeakable’ (Times Leader earlier this week)? Plainly it isn’t, as everyone is doing just that. . A lot of talk about ‘risk’. What is sometimes forgotten is that there are two sorts of risk. The risk [...]

A lot of talk about ‘risk’. What is sometimes forgotten is that there are two sorts of risk. The risk of leaving a child where it is. And the risk of removing a child from its parents when it wasn’t justified. It’s a tough call in many cases. Even if something has gone very wrong in the operation of the child protection system in Haringey (and we await the verdict of the various enquiries and investigations that have been peremptorily embarked upon to shed light on that) these are difficult decisions to make. Sometimes social workers get it wrong, thankfully most of the time errors of judgment do not result in such horrific consequences.

Of course this must be investigated, but it does make you think – how many more social workers, how much more training and support for them could be provided with the money spent on attempting to find an answer to the question of how on earth this could have happened?

The Family Law Week post on this case links to a number of the main sources of commentary and information in respect of Baby P. Family Lore also posts on the topic here.

Posted in stuff

loo

Thu, 23 Oct 2008 20:50:33 GMT

Before I make this post let me say that what I report here is in my experience unrepresentative of social work standards in general. Most social workers maintain professionalism, objectivity and open-mindedness. . I was mortified to hear a social worker involved in a case I was dealing with recently joke about how the children in the [...]

I was mortified to hear a social worker involved in a case I was dealing with recently joke about how the children in the case might be better off if they didn’t have parents. Luckily my client (dad) was not at court to overhear such a crass throwaway remark, which was made in the course of a friendly chat between a cluster of those involved in the case who were waiting for others to join in a more formal discussion, and was I’m sure intended to refer to the fact that the professionals had made repeated attempts to accommodate the parents requests for contact and yet the parents had often failed to attend. There are two main reasons why this remark was unacceptable (apart from it being plain unprofessional and discourteous): in the first instance it is generally accepted that for most children even flawed parents are better than none at all, and that in all but the most serious of abuse cases a relationship with his parents is one which should be maintained, albeit sometimes in a heavily managed or restricted way. It is almost never true that a child would be better off without his parents, even if he cannot live with them (even children who are adopted are increasingly maintaining some relationship with their birth parents). It is concerning that any social worker should forget that even for a moment - it is a symptom of snowblindness, becoming so overwhelmed with difficult or troubled parents that it becomes easier to simply assume that this parent is much like the last, and to discount all hope of rehabilitating children to their natural families because its a waste of time - a social worker who makes this joke has stopped trying. Secondly, in the rare case where it is true that all contact between parent and child should permanently cease it is because things have gone so seriously wrong that that child has very probably been permanently damaged and will certainly feel the consequences throughout his whole life - how can someone tasked with the welfare of these very vulnerable children possibly think that it’s ok to joke about that?

Tell me I’m overreacting if you like, but imagine how you’d feel if you were a parent who overheard the social worker make this remark (very little in a magistrates court is private or soundproofed). Would you be able to trust that they were able to properly put the welfare of your child and his need for a relationship with his mum and dad before their own jaded prejudices?

Posted in stuff

Napier

Wed, 03 Sep 2008 19:06:51 GMT

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.

Napier

Thu, 24 Jul 2008 01:42:45 GMT

The Fayette County office of the Cabinet for Health and Family Services, Protection and Permanency, is already in crisis mode and headings towards disaster. According to one source, there are only a dozen investigating workers and, due to budget constraints, none are being hired. This means a either referrals that normally would be accepted are being turned away, or these workers are stretched beyond reason. I suspect many other counties in Kentucky are faced with extremely excess case loads. And upon whom will the blame fall when the next child fatality occur? Sorry, that is rhetorical. It will be the front line worker despite not having the resources to do an adequate job.

I have also learned that other services, specifically the juvenile services team, are losing workers to retirement and better job prospects with no present means to fill those vacancies. This teams works with youth who are exhibiting behavior problems and/or moderate criminal activity to prevent further criminal involvement. I fear the consequences to our community and those youth with services being curtailed out of sheer necessity from understaffing.

We want a safe community where vulnerable people are protected and crime is minimized. It is time we become willing to pay for the services that will achieve those goals and insist our law makers find appropriate revenue sources (this means increased taxes, the end of corporate welfare, and/or monies redirected from industries that can survive without government incentives) to fund these agencies.

Voluntary versus Involuntary Termination of Parental Rights

gnapier@troutmanhays.com (Gregory Adam Napier) — Thu, 15 May 2008 22:41:04 GMT

There is an interesting post at Elusive Justice about a practice by the Cabinet for Health and Family Services involving parents who think they are voluntarily terminating their parental rights, but then have an involuntary termination entered against them. This may seem like an immaterial difference, but E.J. walks us through a hypothetical that [...]

Napier

Thu, 15 May 2008 22:34:21 GMT

A routine practice by the Cabinet for Health and Family Services in Fayette County seems innocuous to the untrained eye, but it has a huge unintended consequence for certain parents. I wonder if this consequence is actually unintended, but absent confirmation, I’ll give them the benefit of the doubt. Although the Cabinet developed a standard Consent to Adopt and Waiver of Appearance form, in Fayette County (and perhaps others) parents who have decided to voluntarily terminate their parental rights to a child removed for neglect or abuse sign a Petition for Voluntary Termination. The petition has standard language, but each is written for the particular parent. This petition shows parental consent to the termination, but it does not waive the right of the parent to appear at the termination hearing.

Instead of filing the Petition for Voluntary Termination, the Cabinet attaches the signed document to an Involuntary Petition to Termination Parental Rights. This allows them to proceed with the termination even if the parent does not show for the hearing or is not served with the Involuntary Petition. The Consent to Adoption and Waiver of Appearance form would be just fine and allow for the same action, only it would be a Voluntary Termination rather than Involuntary.

This may seem like a meaningless distinction to most people and I am confident few, if any, of the parents signing these Petitions know of the ramification. Only after looking at KRS 625.090(2)(h) is there any concern for this practice. A voluntary termination is not held against a parent regardless of the reason; an involuntary termination counts against them for the rest of their lives:

Let’s say birth mom is addicted to cocaine and realizes she is in no shape to parent Child A. She does the caring and courageous things and voluntarily terminates her parental rights. Unbeknownst to her, though, the Cabinet attaches that voluntary to an involuntary petition. A few years later, she has cleaned up and has another child. Subsequent to a painful birth, she develops an addiction to pain pills and her baby is removed due to the addiction and history, even though Child B is healthy and shows no overt adverse effects indicative of neglect. Mom freaks out and relapses and uses cocaine one time which is caught on a drug screen.

Even though mom was clean for a couple of years, the Cabinet believes the necessary bells have been rung to satisfy the statute, gets approval to dispense with “reasonable efforts” to reunify Child B, and moves to involuntarily terminate the parental rights of mom to Child B. Because the judge has considerable discretion, he or she finds that: 1) there was a prior involuntary termination of parental rights (even though it was based on a voluntary consent), 2) Child B was born after Child A, and 3) mom’s relapse shows the conditions or factors for the previous removal have not been corrected. Even if none of the other items in KRS 625.090(2) have been proven, the termination regarding Child B will occur.

Sure, mom can appeal and argue that the conditions and factors of the previous removal had been corrected and that this was a new episode of drug abuse only tenuously related to the first, but there are major problems with this. First, mom cannot afford a lawyer to file the appeal and Kentucky does not give her the right to court appointed counsel on appeal. Second, the judge’s discretion is broad and incredibly unlikely to be overturned on appeal. One would be hard pressed to say the judge’s findings were “clearly erroneous”.

I am confident that no one from the Cabinet would sit down and explain to the birth mom that she is not only signing away her parental rights to Child A, but is also signing away a safeguard for the parental rights of any future children. Since the Voluntary Petition also waives the parent’s right to appointed counsel, they have no real way to know about this unintended consequence. Now, whether the Cabinet worker and Cabinet lawyer think about how much easier it will be for them to terminate the rights of any future children if they convert a voluntary into an involuntary without anyone being the wiser is anyone’s guess. Regardless, the practice amounts to preventings the parent from truly making a knowing and voluntary consent.

Napier

Mon, 10 Mar 2008 02:24:22 GMT

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.

Napier

Fri, 07 Mar 2008 01:16:02 GMT

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 [...]

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.

Napier

Mon, 18 Feb 2008 00:22:17 GMT

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.

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