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Tuesday, February 07, 2012

My Friend, Judge Tyler Gill: "Governor [Steve Beshear] Shouldn't Shield Cabinet [For Health And Family Services In Child Abuse Deaths]." Who Can Disagree?!

Tyler Gill | Governor shouldn't shield cabinet
Child-abuse secrecy is only designed to protect officials
Written by Tyler Gill | Special to The Courier-Journal

Last week, an article appeared in several Kentucky newspapers authored by Gov. Steve Beshear. In it, he defended the idea of maintaining state secrecy about circumstances surrounding children who have died after citizens reported suspected child abuse to state officials. He said he is fighting alongside the Cabinet for Health and Family Services and its lawyers and seeks to justify the state’s appeal of judicial rulings of the Franklin Circuit Court. In January, that court ordered the Cabinet to disclose information about cases where children died after complaints of child abuse were made to state authorities. I urge the Governor to reconsider his allegiance to the Cabinet on this issue and to see the bigger picture of what is in the best interest of the people of Kentucky.

The Governor argues that, if we make public the identities of those who reported child abuse before the children were killed, this will make people afraid to report child abuse. His article raises myriad concerns about negative consequences that will be suffered if we do not maintain secrecy in child abuse investigations and in legal actions to terminate parental rights. If we open these records, there would indeed be some negative consequences, and I agree with the Governor that the answer must ultimately come from the General Assembly and not the courts.

The publicity surrounding recent tragic deaths of children in Kentucky, and the now public shenanigans of the Cabinet, caught lying about what it knew and when it knew it, have triggered a rare public anger.

The death of 9-year-old Amy Dye of Todd County has become a focal point of statewide anger about the senseless deaths of children and a symbol of state incompetence. People seem eager to find out what went wrong and want to fix the problem. They feel that the safety of children is at stake and secrecy stands in the way. As the Governor said in his article, some are arguing that the veil of secrecy surrounding the Cabinet should be stripped away. Some are even suggesting that the Cabinet be accountable for its actions.

Accountability and openness in government — what novel ideas!

Openness should always be the rule where government is involved and secrecy the rare and carefully considered exception to that rule. I have come to believe that secrecy in courts of law should be eliminated in every adversarial action initiated by any agency of the state. Non-adversarial actions, such as private uncontested adoptions or adoptions after parental rights have previously been terminated, should remain confidential.

My disagreement with the Governor arises from perspective and experience. I have been a circuit judge in Western Kentucky for 17 years. Before that, I was district judge. There is one circuit judge in Todd and Logan counties with no separate family court and so I handle all circuit level cases involving family conflict. Judges have a front-row seat to every variety of real-life struggle involving children and families in confidential cases initiated by the Cabinet. I am directly involved in the matters about which the Governor speaks and see firsthand the practical application of law to people.

In confidential cases, Cabinet lawyers can take action against the interest of the very citizens it is supposed to protect. The Cabinet is directed by statute to protect children, the mentally ill and the elderly. Over the years, I have observed an infrequent but persistent pattern of bizarre actions by lawyers and high-level officials employed by the Cabinet for Families and Children that occur almost exclusively in confidential cases such as juvenile cases, termination of parental rights and involuntarily hospitalizations. Secrecy allows people to do things in ways that they would not dare do in a public setting.

For example, in 2008 one of the Cabinet’s lawyers, with full knowledge of the Secretary of the Cabinet, intentionally fought to release a committed patient from a state psychiatric hospital even though the lawyer openly admitted that, in the opinion of the state’s physicians, the patient was still likely to harm himself or another person upon release. The Cabinet lawyer argued in this secret court setting that the State owed no duty to protect the mentally ill person or to protect others he might harm when released.

This was done because the patient was troublesome to the state employees and hospital administrators who then put pressure on the Cabinet to get the patient out of the hospital. The lawyer admitted that she acted on behalf of the doctors and administrators of the state hospital. This is how the Cabinet protects citizens when secrecy prevails. This same Cabinet lawyer is one of the lawyers now working alongside the Governor to maintain Cabinet secrecy.

I have concluded that the Cabinet is consumed with a bureaucratic mentality and an institutional incompetence instilled by Cabinet leaders. Cabinet leadership is greatly influenced by a small group of senior Cabinet lawyers. Cabinet employees are directed to blindly follow its own internally created “guidelines” ignoring all else. The guidelines are to be followed whether or not doing so hurts children, the mentally ill, the elderly or the public. Reason, pleading, common sense, and sometimes not even a court order can dissuade a Cabinet supervisor from strictly following these guidelines. The Cabinet has become a law unto itself.

I have also come to believe that confidentiality imposed by our statutes is more often used to hide state incompetence or misconduct than to protect the citizens of Kentucky. Do not be misled. The Cabinet’s appeal of the Franklin Circuit Court ruling is not a high-minded effort to protect the privacy of persons who report child abuse. It is to protect the Cabinet.

While we can always find some downside to open government, the consequences of government secrecy are far worse. We need only look to the courts and governments of totalitarian regimes such as China, North Korea, Iran or Cuba for this lesson.

Social workers are not the problem. Almost all of the social workers with whom I have worked over the years are good, hard-working people dedicated to helping others. Many are overworked and underpaid. Yet more social workers and more money will not solve the primary issues.

As for the Governor’s concern that releasing the names of people who report child abuse will cause people to be afraid to report it, I believe that, in the long run, we will protect more children if we focus on getting the Cabinet to respond to the reports that are made.

Full disclosure is the only way the public can know whether reports of abuse have been ignored. The people of Todd County are painfully aware of the likelihood that a multitude of reports of suspected abuse were made by teachers and school officials about Amy Dye in the years before her death, several of which may have been mishandled or misplaced. I seriously doubt any of those who made reports would have allowed fear for their personal safety to keep them from speaking out. Their fear was for Amy.

Generally speaking, teachers and school officials who report child abuse are neither afraid for themselves nor ashamed of their actions. Fearful people have always, and will always, have the option to report suspected child abuse anonymously. I see no evidence that cowardice in reporting child abuse is a widespread problem.

Gov. Beshear is correct that the General Assembly should address these issues. I hope that the public outcry will continue and that its focus will be directed towards real issues and positive change. The Governor concluded his article by saying that he would continue to battle in court alongside the Cabinet and its lawyers. I urge Gov. Beshear to stop listening to the Cabinet’s lawyers and to start battling for the people of Kentucky. Our children deserve an open and accountable government.

Tyler Gill is circuit judge of Todd and Logan counties.

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