Posts Tagged guardianship

Another toddler foster child is killed….

By Attorney David Engler

Another toddler was killed in a foster home, this time in Maryland. 

The two year old girl was beaten to death by the 12 year old son of the foster parents. 

Public child welfare agencies are the only ones who don’t see that our delivery system of child protection services is largely broken. They hide from scrutiny by cloaking themselves in rules of confidentiality.

Of the families I have represented the thread is common. They are usually poor, uneducated and unable to ask questions.  Perhaps that is why their children end up in children services care.

But once government gets involved, then it becomes our business and the death of one child who was given to an agency that was meant to protect should cause an immediate and open review and call for changing the bureaucratically bloated child protection system. 

Below is today’s editorial from the Washington Post.  It could have been written in all but a handful of states like Virginia, Kansas and Florida that have overhauled children protective services.

WHEN WELFARE authorities remove a child from the home, it is supposed to be for the child’s safety. It is simply unthinkable that a 2-year-old girl in Prince George’s County who was taken from her mother’s custody was beaten to death while in the care of a foster family. Not only must there be a thorough review by county and state authorities, but it’s important that circumstances of the case — including a determination of whether the tragedy could have been prevented — be made public.

Aniyah Batchelor, who turned 2 in March, died Tuesday of “blunt force trauma,” according to Prince George’s police, who said she was beaten inside her foster parents’ home in Fort Washington. A 12-year-old boy, son of the unnamed foster parents, was charged with second-degree murder. Police allege that the boy had “beaten the child repeatedly’’ in a single attack; no weapon was used. It appears that the parents were away and their 15-year-old daughter was sleeping.

When a foster child is killed confidentiality is no excuse for concealing what happened and why.

The toddler had been in foster care since November. “Our hearts go out to the families involved. Both families and the staff that worked with them will need our support in the coming days,” read a statement issued by the Maryland Department of Human Resources, parent agency for the Prince George’s County Social Services Department, which handled the child’s placement. There is no doubting the need for sympathy, but officials also must provide a better explanation of the actions taken in this case.

Predictably, they have chosen to hide behind a supposed need for confidentiality and privacy even as state spokesman Pat Hines acknowledged that the state can discuss some details about a child in foster care if there is “an allegation of abuse and neglect” resulting in a death. Incredibly, state legal authorities concluded that that exemption doesn’t apply to Aniyah’s case.

Perhaps this was a tragedy that could not be foreseen; maybe it occurred despite best and correct efforts. But there are unanswered questions. Was the foster home properly screened? Were the parents trained? Had there been any signs of trouble? Were there alternatives that would have allowed Aniyah to avoid foster care? The public, the 6,859 Maryland families with children in foster care and, above all, this little girl’s mother need more than expressions of sorrow. They deserve answers.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Also published on Attorney David Engler’s Law Blog http://davidengler.wordpress.com

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“I Get Tired Chasing Tongue Draggers” from the lips of a fired teacher……

By Attorney David Engler

For the last 12 years I have been a school board member of a county board and a career and technical center. On the county board or Educational Service Center we provide the services to help local districts improve. We also run special schools including one for emotionally disturbed children with varying behavioral issues; a school run in conjunction with a great program started by the local Juvenile Court Judge Theresa Dellick.  At the MCCTC almost a third of our students have an IEP. An IEP stands for Individual Education Plan. It is required by law and so many parents do not understand how important to ensure your child’s IEP is carefully constructed to specifically help your child no matter the cost or inconvenience to a district.

 

The worst thing I ever heard was from the lips of a fired teacher who told me how hard it was to chase after “tongue draggers” every day. My emotions were caught in between punching him and simply shaking my head. I am glad we fired him. Instead I will never forget those words and how insensitive some in education can be towards a child with a disability.  And if that disability is one of a severe emotional problem or a slight shade of Autism or Asperger’s, then most of our teachers are ill-trained to help the child with the different wiring. There are many teachers who just get it.  They are naturals at knowing how to reach the student with a disability that can be unnerving and tiring. They also understand the investment a parent has made in this child.  The teacher may have the child 6 hours a week or maybe more if an elementary student.

And often indifference is the answer from an administration concerned about increased costs.  So whether they admit it or not, every administrator knows that a diagnosis of a disability might bring years of extra costs for the district. In a famous case that went all the way to the Supreme Court, Forest Grove School District v. T.A. (2009) the court ruled that the district should have reimbursed the parents for the costs of private schooling since the District should have been aware of the disability and provide assistance to the family.  The District claimed they had no idea there was a problem. Justice Stevens of the Supreme Court stated: “We conclude that IDEA (Individuals With Disabilities Education Act) authorizes reimbursement for the cost of special education services when a school district fails to provide a FAPE (Free and Appropriate Public Education) and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.” The cost to the district was $65000 to reimburse the parents and potentially $500000 in legal fees. 

Every school district is legally required to identify, locate, and evaluate children with disabilities (20 U.S.C. §1412(a)(3)). After the evaluation, the district may provide the child with specific programs and services to address special needs.

IDEA defines “children with disabilities” as individuals between the ages of three and 22 with one or more of the following conditions:

  • Mental retardation
  • Hearing impairment (including deafness)
  • Speech or language impairment
  • Visual impairment (including blindness)
  • Serious emotional impairment
  • Orthopedic impairment
  • Autism
  • Traumatic brain injury
  • Specific learning disability, or
  • Other health impairment                  (20 U.S.C. §1401(3); 34 C.F.R. §300.8).

For your child to qualify for special education under IDEA, it is not enough to have one of these disabilities. There must also be evidence that the disability adversely affects your child’s educational performance.

Now each school district should be well aware of its responsibilities.  But sadly not every administrator can see life from the eyes of a parent struggling to find help for their child.  The schools seem relieved if they can cause the child to graduate and be done with the financial exposure. The former Director of Special Ed for Maryland, Dr. Linda Bluth gave me the best advice ever.  “Our children do not fail…it is we who fail our children.” It is very difficult to cause a school culture to adopt this core belief.  It makes us accountable.  It denies us the ability to blame little to no achievement on a kid with a mental problem, a broken home, a history with children services, parents who think they know better(they almost always do) or some other societal bogeyman.  No we have to own it.  This means we will have failures.  And they will sting. 

But for the guardians and parents there is help for you. I have included some of the language in the federal IDEA statute above to help you know what to do.  The regulations can be found at www.gov/about/offices/list/users.  The country has 81 million students that fit this category.  Ohio has about 3 million.  We need more teachers and aides with special education training. We need to pay them more to encourage their numbers and recognize that their job makes teaching even tougher than it already is.  You can also look at www.mdlclaw.org/wp-content/uploads/2010/02/pub-special-ed-handbook. This handbook gives you sample letters to ask for independent evaluations  and how the legal process works.  Or hire a lawyer.

Most importantly we need parents to step forward and be armed with the law as you demand the very best possible Free and Appropriate Public Education for your child. The key word to me is appropriate.  These children are all so very different.   Make sure the IEP has real goals that can be measured without someone guessing that your son or daughter has advanced with soft logic.  Don’t give up and never be afraid to ask to talk directly to the Board of Education.  Often the Board members are shielded from the other side of the story. Do not assume that they will side with the administrators standing in your way.  

You have been given a child with special needs because you can handle it.  I do not need to tell you your journey is tough. Not everyone is going to be understanding.  But I can tell you that the law is on your side and many more people than you could possibly imagine.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Also published on Family Fault Lines Blog http://familyfaultlines.com/ and on eGuardianship.com http://eguardianship.wordpress.com//

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Addiction Stronger Than Motherhood

By Attorney David Engler

Custody disputes take place in Juvenile Court, if the families are not married or Domestic Court, if the family is in the process of a divorce or have divorced previously.

Custody disputes take place in Juvenile Court, if the families are not married or Domestic Court, if the family is in the process of a divorce or have divorced previously.

Clearly having an agreement about how a couple will jointly parent the child or children is the best result.  But if there is no agreement, often accusations will fly.

And I warn all clients to be aware that the court might order a drug screen at any given time.  The courts will almost always take the child or children from the parent on illegal drugs and give custody to the parent who is not hooked.  Sometimes it is hard to find anyone not taking pain pills without a prescription. In one case both parents and a grandparent were dirty. In Ohio for the first time overdoses of drugs has overtaken auto accidents as the leading cause of accidental death.

In one case the mother was asked by the Magistrate to give a urine screen and she said she couldn’t because she had a yeast infection.  Everyone found that to be disgusting and a weak excuse.  Recently a nice looking young mother was asked to take a screen and at first she agreed.  Then after 15 minutes she comes back and said she had just pee’d before court.  The Court told her to drink some water. 30 minutes later still no urine.  I really didn’t need to see a drug test. She had all the signs.  Empty pill bottles without prescriptions.  Selling things from her house.  Unable to keep a schedule.  A doctor at an ER saying no narcotics for you after she came with a complaint of a tooth ache.  (I was thinking good for the doctor who checked the database from his Akron offices and saw she had filled 21 prescriptions for pain meds in the last two years.)

So she only sees her child if supervised.  That is the overwhelming power of the pain pill epidemic. This scourge does not see race, sex or income.  It is even more powerful than a mother’s natural instinct to care for her child. 

People can recover and get their children back.  But the road is very difficult and those who are nearest to the addict must not be fooled.  We the parents, or friend or guardian must dispense very tough love. Get help; call 211. You will find a counselor, clinic or N.A. Group.  It is a persistent enemy.  For some it is stronger than motherhood.

 

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Also published on eGuardianship.com http://eguardianship.wordpress.com// and on Attorney David Engler’s Blog  http://davidengler.wordpress.com//

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Home Eldercare – Medicare and Medicaid

By Attorney David Engler

Caregiving

Medicare does not have any program to pay a family caregiver. Medicare has only limited coverage for home care, and when it does cover home care it does so through a Medicare-certified home health care agency. It does not pay independent caregivers, family or otherwise.

But that does not mean you are without a solution because most money spent on nursing and home health care comes from the States who pay for Medicaid in partnership with the federal government.

In many states, Medicaid has a program to directly pay a person needing home care, and that person can turn around and use the money to pay a family member (or anyone else) to provide that care. If the person who needs help in order to stay at home rather than go to a nursing home has too many assets; the senior in need might still qualify for such a direct payment program. That’s because in many states eligibility for these programs is extended to people who have low income and assets though not low enough to qualify for Medicaid.
Caregiver
These payments work through a state program, called Passport, Cash and Counseling or other similar name, often run through the state’s Medicaid program. To learn more about these cash assistance programs, contact the local Medicaid office usually run through the local welfare department. (now often called Jobs and Family Services) If your state has a Cash and Counseling or similar state cash assistance program, you can get information about it at a local Medicaid office. To find a local Medicaid office, contact the Eldercare Locator by phone toll-free at 800-677-1116, or online you can go to any search engine and type in “Medicaid” and the name of the state.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website

Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal Law

Originally published on eGuardianship.com http://eguardianship.wordpress.com//

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Age and Its Awful Discontents

By Attorney David Engler

Walking Woman

In my earlier blog I wrote about my Mother finding a new friend in the weeks of her final dawn. “Wanda and Stella” was about the two WWII era nurses that made a pact to go to heaven together.

Mom died on February 3, 2012 and Stella died March 3, 2012. The following piece is from Louis Begley who writes with beauty about friends lost as we age. This was published in the March 18, 2012 New York Times.

“My mother died in 2004, two days short of her 94th birthday, and 40 years and two months to the day after the death of my father. He died at 65; for the preceding four or five years he had been in poor health.

My mother and I lived through the German occupation in Poland; my physician father, having been evacuated with the staff of the local hospital by the retreating Soviet army, spent the remaining war years in Samarkand. Left to fend for ourselves, my mother and I became unimaginably close; our survival depended on that symbiotic relationship. All three of us — I had no brothers or sisters — arrived in the United States in March 1947, and once here I began to keep her at arm’s length. Especially during her long widowhood, I feared that unimpeded she would invade my life, the life she had saved. I remained a dutiful son, watching over her needs, but was at first unwilling and later unable to be tender.

My abhorrence of the ravages and suffering inflicted on the body by age and illness, which predates my mother’s decline in her last years, is no doubt linked to there being no examples of a happy old age in my family. The grandparents, uncles, aunts and cousins who might have furnished them all met violent deaths in World War II.

Unsurprisingly, dread of the games time plays with us has been a drumbeat in my novels. Thus, arms akimbo, majestic and naked, standing before a glass, Charlie Swan, the gay demiurge of “As Max Saw It,” illustrates for the younger narrator on his body the physiology of aging: misrule of hair, puckered brown bags under the eyes, warts like weeds on his chest, belly, back and legs, dry skin that peels leaving a fine white snow of dandruff. Listening to him, the younger man is reminded of his own father in a hospital, permanently catheterized, other tubes conducting liquids to his body hooked up to machines that surround his bed like unknown relatives. He prefers his mother’s “triumphant” exit. A headlong fall down the cellar stairs kills her instantly.

I have followed the progress into old age of Albert Schmidt, like me a retired lawyer, in three novels. Schmidt is 60 when we meet him in 1991; when we part on New Year’s Day 2009, he is 78, therefore a couple of years older than I was then. Life has not been kind to him, but so far, Schmidt enjoys excellent health, marching up and down the Atlantic beach in Bridgehampton and New York City’s avenues, and doing laps in his pool. Although he worries about performance, his libido is intact. Nevertheless, the reflection of his face in the window of a shop is frightening: he sees a red nose and bloodshot eyes, lips pursed up tight over stained and uneven teeth, an expression so lugubrious and so pained it resists his efforts to smile. My appreciation of my own charms is not very different. Like Schmidt, I see that nothing good awaits me at the end of the road, and that passing years will turn my life into a Via Crucis.

And yet my body, like Schmidt’s, continues to be a good sport. Provided my marvelous doctor pumps steroids into my hip or spine when needed, it runs along on the leash like a nondescript mutt and wags its tail. My heart still stirs when I see a pretty girl in the street or in a subway car, but not much else happens. Except that, since by preference I stand leaning against the closed doors, she may offer me her seat. When last heard from, Schmidtie figured he had another 10 years to live. I have a similar estimate of my longevity. Such actions as buying a new suit have become dilemmas. The clothes I have may be fatigued and frayed, but won’t they see me through the remaining seasons? Can the expense of money and waste of time required to make the purchase be justified?

My mother did not remarry after my father died. She lived very comfortably, but alone, in an apartment 15 blocks away from my wife’s and mine. If we were in the city, we went to see her often and then daily as her condition deteriorated in the last two years of her life. Our children and grandchildren tried to see her often, too — and those visits brought her great joy — but they live far away and the happiness was fleeting. During her last decade she was very lonely. Most of the friends she had had in Poland had been killed. Those who had escaped and settled in New York one by one became homebound or bedridden, lost their minds or died. Or she found they bored her. Hearing poorly, tormented by arthritis in hip and knee joints, too proud to accept a wheelchair, she stopped going to museums, concerts and even the movies. She had loved sitting on a Central Park bench and putting her face in the sun. That humble pleasure was also abandoned; she couldn’t get the hang of using a walker.

Having rehearsed the bitter gifts reserved for age, T. S. Eliot wrote in “Little Gidding” that “the end of all our exploring/ Will be to arrive where we started/ And know the place for the first time.” The closer that place — the human condition — is to home, the harder it is to take in. I could speak movingly of Schmidt’s loneliness after the loss of his daughter, calling his existence an arid plane of granite on which she alone had flowered. But it has taken me until now, at age 78, to feel in full measure the bitterness and anguish of my mother’s solitude — and that of other old people who end their lives without a companion.”

Louis Begley is the author of several novels, including “Schmidt Steps Back.”
A version of this op-ed appeared in print on March 18, 2012, on page SR7 of the New York edition with the headline: Age and Its Awful Discontents.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

Also published on eGuardianship.com on March 20, 2012 http://eguardianship.wordpress.com//

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The (lack of a sincere) Apology

By Attorney David Engler

The CSB worker that I agreed not to prosecute gave me the old no apology, apology. It’s where you tell the offended party that you are sorry if they were so stupid that you took their threatening words as a threat. That since you are so stupid, then I am sorry you took my warning to “stay out of Trumbull ” as something other than a nicety we people use around here. And I am so sorry if you or someone might have been alarmed that I used ugly language that would make my mother’s hair curl to tell you I would attempt to ruin your business…but if you should happen to have such thin skin then I’m sorry.

Try using one of these lines on your wife. Boom to the moon!

(Here is a link to an article that describes the pathology of the faux apology.
http://lightshouse.org/lights-blog/false-apology-fake-apology-fauxpology )

It is this total lack of remorse in their every ill-advised actions that make me pursue this agency, seeking justice for the murdered and abused children. If Trumbull County’s CSB openly recognized their mistakes, and were making a sincere effort to correct them, one could give them the benefit-of-the-doubt. But in fact, they are not sincerely trying to make good, they are simply scrambling to take any actions which will make the spotlight on their operations go away.

Let’s not allow them to do that, for the good of our region and the good of our children let’s keep the spotlight where it belongs, on the children Trumbull County CSB has had in their custody who have been abused and murdered.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

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Poor Auntavia. When a child is murdered it should be asked: “What did we do wrong?”

A note to my friends: Thanks for your showing of support. I appreciate it. I have written another article for you and hope you will look at it and give me your feedback. I consider the writing part of my job fighting for people.

By Attorney David Engler

Nick Kerosky, the Director of Trumbull County Children Services expressed succinctly the attitude of most bureaucratic children service directors, “There’s no support that it [wrongdoing] ever happened. I don’t believe it ever happened,” Kerosky said.

“While the death of a child is always a tragedy, it is unfair and unethical to assume that a death means that there must be wrongdoing on the part of CSB.” Director Kerosky said in a press release, in response to allegations that the 2003 death of 3 year old Auntavia Diggs was in part due to CSB’s inaction

Kerosky believes that one, two or three children deaths in Trumbull County, Ohio during a 6 year period should not give rise to criticism of CSB. I suppose he is talking about me when he suggests it is unethical to assume a death means that there must be wrongdoing on the part of CSB.

I will not comment about my pending action on behalf of a dad who lost his only child, a daughter, (without being represented,) to a foster-parent who quickly murdered the little 22 month old, strangling the life out of her. CSB said she would be a good foster parent. She left the impression of her ring on the baby’s neck.

No I want to talk about poor Auntavia who was tortured, burned and then murdered by people CSB said were appropriate to watch children.

Relatives say Ethel Wilbert-Bethea who is serving 21 years for murder reached out to CSB three times to give the baby back. CSB’s records, which we learned from the State Audit are sometimes ‘adjusted after the fact’, reflect a Hogan’s Heroes Sargent Schultz mentality of “I’ve seen nothing. I’ve heard nothing.”

5 months earlier in 2003, little 4 year old Logan Guiton was murdered while in foster care by Michael Ledger. His head was cracked against a wall in the house where he was placed by CSB. Ledger is serving 15 years to life. The CSB director at that time said there were no records to suggest CSB had any culpability.

This is the point: when any child in their care dies, it should be assumed that children services erred. An agency should not be afraid to look at itself in every instance and find out how it could have prevented the tragedy.

Look at The CSB mission statement. …it is to protect children in Trumbull County from being abused in their schools, homes and to especially protect those children from the most likely abuser, a family member. The standard of care becomes even greater when the child falls into the care and custody of CSB. It would seem that a child being molested in CSB’s own building would be a clear case of a colossal CSB screwup when it was known or should have been known that the father was a voracious sexual predator who had his siblings removed from his home when he was released by department of Youth Services. While in Mahoning County lock up as a juvenile, he was a sexual predator. The grandmother complained to CSB about him being a sex offender. CSB does not keep notes, when it does not fit its story.

Trumbull County Children Services Bureau fails when a child gets sexually abused. Anywhere. Anytime.

It will happen again. And at every turn CSB should be asking itself what did we do wrong. This doesn’t mean CSB will be sued. It is a fundamental shift in philosophy from what Kerosky said about the murder of poor Auntavia, to a more principled belief, that when it comes to the safety of our children there is no margin of error. There can be no hesitancy to act. Each tragedy should be a moment to learn from mistakes and work harder to prevent the loss of a child in the future. CSB is protected from just about every form of liability except the one that springs forth from the expenditure of 15.5 million dollars of taxpayer money each year to affirmatively keep kids from dying. CSB is in a statistical tsunami of children’s deaths and abuse and its answer is to say bad things happen. The rate of children’s death by caregivers in Trumbull County is either a statistical anomaly or an indication that something is broken and needs fixed.

“Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except … dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles – so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” – that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve – but now are denied by this Court – the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide.”

This was the famous dissent given by Associate Justice Harry Blackmun in the DeShaney v. Winnebago County Children Services case that stands as law today. The mother of Joshua had sued the county CSB for allowing the child to go back to the care of his father despite a clear indication that the father was a child abusing bully. A child was abused by his father and CSB failed to act. The majority in the case stated that Joshua could not recover from Winnebago County because the federal laws are meant to protect violations of a state actor, not a private actor like Joshua’s father or in the case in Trumbull County, Wilbert-Bethea who murdered Auntavia. The Supreme Court did say that there might be state court remedies, but those are unlikely since governmental immunities protect CSB from all but the most egregious acts of indifference. They are not protected however when the offender who kills or molests is an agent of the State like a foster parent or the harm takes place on its own property.

It is unlikely that CSB will change from within and become the type of agency that understands that every death of a child is one too many and at each death or each incident of abuse CSB should ask itself what it did wrong.

Our victimized children do not fail us, we fail them.
CSB is given $15.5 million dollars a year to perform a job the rest of us believe is proper and right.

And this is not a condition that is found just in Trumbull County, Ohio. It has happened with three murders of children in Hamilton County this past year.

The State of Florida, after the sickening murder of a young boy and girl by their adoptive father, revamped its entire child protective service organization to allow not-for- profits and faith based groups a chance to be held more accountable than government agencies grown indifferent with time and attitudes of “it wasn’t me.”

Yes there should be no shame in each time a child is murdered, abused, or abandoned for the wealthy tax payer funded agency to say to itself, “what did we do wrong.” Not to take this attitude will only lead to more unspeakable horrors.

Attorney David Engler
Phone: 330-729-9777
http://www.DavidEngler.com Attorney Engler’s website
Areas of Practice: Family Law, Elder Law, Domestic Relations, Bankruptcy, Criminal

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