Iraq War Veteran, Fit Father Has Parental Rights Terminated

by Robert Franklin, Esq.

A veteran of the Iraq war has had his parental rights terminated despite having in no way wronged his child or its mother. Read about it here (Booneville Democrat, 12/8/11).

The facts of the case are straightforward. Edward Glover served in the U.S. armed services. He was deployed to Iraq. His wife, Michelle gave birth to a child, E.G. in November of 2008. While Edward was serving abroad, Michelle took up with one Maliki Raheem who had a history of domestic violence. In April, 2009, it came to the attention of the Arkansas Department of Human Services that E.G. had been severely abused by Raheem. Here is how the dissenting judge of the Arkansas Court of Appeals described the child’s injuries.

The abuse was severe: E.G. had scalding on his chest and abdomen, bruising, blood inside his eyes, head injuries, perforation of his stomach, a liver contusion, three rib fractures, bilateral retinal hemorrhages, bruising around the eyes and scalp consistent with trauma, a possible lung contusion, and burns to the abdomen, shoulder, right thigh, and left scrotum.

Edward Glover obtained emergency leave and returned home, but was sent back to Iraq 10 days later. Glover remained deployed oversees while legal proceedings played out. The ADHS of course took his son into foster care and eventually succeeded in terminating Michelle’s parental rights. At all but two hearings, Glover was neither present in person nor represented by counsel.

Irrespective of the fact that Glover had done nothing wrong and was never accused of any form of wrongdoing toward anyone, the trial court, at the request of ADHS, terminated Glover’s parental rights and the Court of Appeals affirmed the ruling. Indeed, if there was a claim by anyone at any time that Glover had ever in his life done anything to indicate unfitness as a parent, neither the trial nor the appellate court mentioned it.

So how is it possible for a father, who has not a single black mark by his name, to entirely lose his rights to a child, born during his marriage and therefore presumptively his? The cogent dissent from the Appellate Court’s decision says he can’t, but more about that in a bit.

Apparently the reason the trial judge terminated Glover’s rights is that he didn’t follow the court’s orders to avail himself of certain “services” of the ADHS. Now, remember, that ADHS is an agency of the State of Arkansas, but during most of the court proceedings, Glover was nowhere near Arkansas and therefore could not be ”served” by ADHS. More importantly, the “services” ordered are transparently aimed at a parent who has abused his/her child. Here they are:

-provide complete medical history for juvenile
-parenting classes
-anger management classes
-forensic psychological evaluation – follow recommendations
-random drug screens
-remain drug free
-remain alcohol free
-provide vital info for fetal alcohol syndrome assessment
-drug and alcohol assessment – follow recommendations
-medication assessment and follow recommendations
-maintain stable and suitable housing
-attend staffings at DHS
-cooperate with Department
-maintain contact with Department
-attend visitation with juvenile
-demonstrate improved parenting
-maintain reliable transportation or seek reasonable assistance from DHS
-complete affidavit of Financial Means
-refrain from criminal or illegal activity

So what we have is a state agency and four separate judges who couldn’t quite grasp the fact that, although there was an abused child and although there was a father in court, the father hadn’t abused the child. Glover didn’t need any of the “services” ADHS said he needed.

Likewise, the fact that he was out of the country most of the time and in the hospital part of the time when he returned from abroad and was honorably discharged from military service, and therefore unable to avail himself of the “services” never sank in on the judges or ADHS.

Late in the game, the court appointed counsel to “represent” Glover. I use quotation marks around the word “represent” because the dissenting justice at the appellate court described that representation this way:

The quality of the appointed counsel’s representation at this late stage of the case supports an inference that the purpose of the appointment was not to assist Mr. Glover in negotiating his way through the juvenile courts to gain custody of E.G., but rather to facilitate his exit by terminating his parental rights.

The dissent’s description is given considerably more weight by the fact that Glover’s lawyer made no effort to assert at trial any of the very obvious legal issues presented by the termination of a fit father’s parental rights. Having failed to assert them at trial, they couldn’t be asserted on appeal. To make her malpractice still more obvious, Glover’s attorney filed his appeal but under a “no-merit” procedure. That’s one in which the lawyer files the appeal because her client demands it, but tells the court it has no merit. This was “zealous representation” by an attorney? It’s more like a bad joke.

In short, the lawyer worked hand-in-glove with ADHS and the judges to cut the father out of his child’s life. My strong belief is that ADHS wanted that all along. That’s why its counsel convinced the judges to order the long list of “services” for Glover to comply with. ADHS hoped that Glover wouldn’t comply due to his deployment overseas and failure to comply would lose him his parental rights. And that’s just what happened. Some people may call that justice. I call it a conspiracy.

Not surprisingly, Glover lost his appeal. The appellate majority said he hadn’t raised any of his issues on appeal, so there was no way he could win. Fair enough. Or was it?

On the contrary, the dissenting judge, Josephine Hart, completely destroyed the majority’s summary dismissal of Glover’s appeal. She points out that, due to a case decided by the Arkansas Supreme Court (the Mahone case) during the pendency of Glover’s case, the state cannot interfere with the parenting rights of a fit parent.

The Mahone court overruled Judkins and held that custody of a child taken from a custodial parent should result in first shifting custody to the nonoffending, noncustodial parent.

Importantly, the Mahone court relied on U.S. Supreme Court precedent in so ruling.

The United States Supreme Court has stated that it is a fundamental right to parent a child without interference by the state. Accordingly, there first must be a showing of unfitness before the state may intervene. The fact that one parent is unfit does not alter the state’s burden to prove that the other parent is also unable to care for the child before it may interfere in the family… Without a finding of unfitness, the state has no constitutional authority to exercise that power. Under current Supreme Court authority, the existence of a single fit parent, regardless of the acts of the other parent, negates the state’s ability to interfere in the family unit.

Those are, once again, Judge Josephine Hart’s. She was writing at the appellate level in Mahone and, when the case got to it, the Arkansas Supreme Court agreed.

More importantly still, the trial court in Glover’s case had no jurisdiction. In order to exercise any authority over his rights, it had to first find that he was unfit. It didn’t because he wasn’t. Therefore, the matter could be raised for the first time on appeal.

It can therefore be raised before the Arkansas Supreme Court. From here, it looks like a slam-dunk win.

To date, however, the lesson Edward Glover’s case teaches us is just how determined child welfare agencies are to cut fathers out of the lives of their children and how willing courts are to comply.

Source http://www.fathersandfamilies.org/?p=22391

‘Culture of Secrecy” hid death of child in state welfare system - Kentucky

By Mike Farrell

Now we know why Franklin Circuit Court Judge Phillip Shepherd declared a “culture of secrecy” exists at the state’s Cabinet for Health and Family Services.

That secrecy was necessary to hide from the public the state’s failure to protect a child who was bludgeoned to death.

“This case presents a tragic example of the potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny,” Judge Shepherd wrote in the most recent decision over state records in the death of a child.

In a 19-page decision he issued Nov. 7, the judge detailed what he referred to as a “systematic breakdown” of the state’s child protective services, which contributed to the death of a nine-year-old Todd County girl in February.

The judge made it clear the cabinet failed to fulfill its responsibilities in this case. “(T)he Cabinet’s records document an alarming history of misfeasance, at best, or malfeasance, at worst, on the part of the Cabinet in addressing allegations of abuse and neglect” in this case.

Amythz Dye was murdered on Feb. 4 outside her home by her 17-year-old brother, Garrett Dye, who pleaded guilty last month. She had been bludgeoned. According to the court’s decision, she had been shoveling gravel outside the house on a cold night as punishment for stealing pudding and juice from a friend’s lunchbox at school.

The girl had been adopted by Kimberly Dye after she had been removed from her biological home in another state as a result of physical and sexual abuse. She was the great-niece of Kimberly Dye, who was then divorced and living with her two sons. The cabinet had approved the adoption, even though other relatives had indicated interest and the cabinet had previously confirmed the abuse of one of her sons by the father.

Judge Shepherd reported that the cabinet had received eight separate reports of suspicions that the girl was being abused.

• The first report in the cabinet’s file was that one of her two older brothers had thrown her across the bed and kicked her, leaving 5-inch bruises on her hips. The cabinet’s records indicate the report involved a “sibling altercation” and did not meet the criteria for investigation.

• One week later, the school nurse reported that the girl said the brother had been hitting her and knocked her off the bed. This incident was viewed much as the first, and after the cabinet talked to the mother, it took no further action.

• About a month later, the school nurse called again to report the girl had thumb prints on her face and her skin was peeling. She said the injuries were caused by the same brother, and that the mother had warned her she would be spanked if she told anyone. The mother told a cabinet worker the girl had been playing in gravel and rubbed it on her face. The cabinet record shows no further follow-up.

At the same time, the school nurse wrote a letter to the cabinet detailing six referrals of suspected abuse of the girl she already had made. She asked that a cabinet worker come to the school to talk to the girl.

Apart from that letter, Judge Shepherd said the cabinet’s records do not document three of those six referrals:

• Two weeks before the first incident documented in the cabinet’s records, a guidance counselor told the cabinet the girl had bruising on both thighs and said she had been hit by her brother.

• Between the second and third report in the cabinet’s documents, the school nurse reported the girl said “her private parts hurt” and she felt a burning sensation when she urinated.

• The next week, the same school nurse reported the girl had fingerprint bruises on both arms, which she blamed on the brother grabbing her and then shooting her with a BB gun.

• Three weeks later, the cabinet received a report that the girl was being hit in the head with a shovel by the brother. The mother told a cabinet worker the girl had hit her head on a desk. The only documented action was to refer the family to an outside agency.

• Another report came several months later. The girl said the brothers had hurt her, her eye was bruised and swollen, and she was covered in bites. Kimberly Dye told a cabinet worker that the girl had tripped and fallen while running, the same story the brothers told. The girl also was interviewed and she said she had fallen and hit her face on the ground. The cabinet concluded as a result of this information that the family did not need any services.

The court decision does not document further reports, meaning about three and a half years elapsed between the final referral reported to the cabinet and the girl’s murder. We know all of this only because the Todd County Standard sued the cabinet for the records, and in ruling for the newspaper, the judge laid out the story.

This decision was the third open records decision Judge Shepherd has issued against the Cabinet for Health and Family Services, and the second in four days. The cabinet has refused to release records related to the deaths of children who were under its supervision, citing a federal requirement of confidentiality. In all three lawsuits filed by newspapers seeking the release of those records, Judge Shepherd has ruled federal laws do not require that confidentiality when a child dies.

“The Open Records Act is the only method available by which the public and the legislature can obtain information regarding the systematic breakdown of our child protective services that contributed so directly to this child’s death,” Judge Shepherd wrote.

So where is the public outrage? Perhaps citizens aren’t outraged because the cabinet has succeeded in keeping the public in the dark about its failures.

A young girl who had been abused in her biological home is placed into another home by the Kentucky cabinet, which then fails to recognize, despite multiple reports, that she is being abused again.

Why isn’t Gov. Steve Beshear demanding answers? Where is his message of assurance to the citizens of the state that changes will be made swiftly to ensure children who are being supervised by the cabinet will be protected?

Why does he allow the cabinet to continue this “culture of secrecy,” hiding behind a statutory requirement that exists only in its excuses?

The Courier-Journal reported after a 2009 investigation that nearly 270 Kentucky children had died of abuse or neglect during the past decade — more than half in cases in which state officials knew of or suspected problems.

The General Assembly has a responsibility to assess where the failure lies. Is it training? Is it staffing levels? Are the cabinet’s procedures defective? Is the cabinet simply too big to manage all of its responsibilities? Whatever the contributing factors, something is wrong when eight reports of suspicious injuries fail to bring a troubled family into the cabinet’s program of services.

The cabinet clearly has a difficult job to do with limited resources, trying to protect so many abused and neglected children. Nevertheless, its unwillingness to be accountable to citizens of this state by responding to open records requests is troubling. This cabinet and the administration, regardless of who is in the governor’s mansion, must be accountable to the public. It’s clear from the three lawsuits and the recent string of open records appeals that the cabinet does not understand how important it is that their work be subject to public scrutiny.

Perhaps an independent commission should be established to investigate the death of every child who is a victim of abuse or neglect. That would mean the commission would need staff, subpoena power, and be required to publish its findings and make recommendations.

Being a child protection service worker is a difficult, demanding and sometimes dangerous job. Most of those workers do an admirable job of protecting children and steering troubled parents and families to available assistance. We owe them our appreciation and support.

But the problem is with the officials who run the agency and who resist reasonable requests by citizens and the media for information and about individual cases of abuse and neglect.

All of our children deserve to be protected. We all must do more to ensure their safety and to demand that the state protect each one. And we must demand that the cabinet is accountable to the public for its actions. The little we know at this point we know only because of the work of three newspapers, the attorney general’s office and Judge Phillip Shepherd.


Mike Farrell is the director of the Scripps Howard First Amendment Center at the University of Kentucky and an associate professor in the School of Journalism and Telecommunications. He was a journalist for nearly 20 years at The Kentucky Post. His views are his own and not those of the university or of KyForward.