By Judy Clabes
NKyTribune editor
Filing within hours of a deadline, counsel David Brent Irvin of the Kentucky Cabinet for Health and Family Services has petitioned the Sixth Circuit U.S. Court of Appeals for a rehearing “en banc” in the suit filed by Holly and David Schulkers and their five children.
The Schulkers of Fort Thomas filed a suit against three social workers with the Cabinet for the handling of their case in the wake of a hospital drug screen for opiates when Holly Schulkers was having a baby. The Schulkers were threatened within their hospital room with immediate removal of their children to foster care if they did not sign the Cabinet’s “Prevention Plan” for supervised visitation. The Cabinet’s “Prevention Plan” presented to the Schulkers included a stamp that stated “absent preventive measures there is a planned arrangement for foster care for this child.” There was never such an arrangement for foster care and the Cabinet learned within hours that Holly’s test was a false positive.
Despite the fact that the Cabinet learned indisputably that Holly’s test was a false positive, by the results of a subsequent umbilical cord test and a confirming urine test, the Cabinet interviewed the Schulkers children at school without the parent’ knowledge, had their dismissal from the hospital with their newborn delayed, and were under “protective” orders at home that Holly could not be alone with any of the children — for weeks after the Cabinet knew the drug test was wrong.
A three-judge panel of the Sixth Circuit ruled March 30 unanimously in favor of the Schulkers on all points in their lawsuit.
See the NKyTribune’s story about the suit here.
Basically, the Cabinet had three options: Allow the suit to proceed to trial, appeal to the U.S. Supreme Court, or file for “en banc” rehearing.
The “en banc” rehearing means the Cabinet wants the case to be reheard by the full court. Appellate courts can grant rehearing en banc to reconsider a decision of a panel of the court (typically consisting of only three judges) when the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court. A majority of the active circuit judges may decide to hear or rehear a case en banc. Only a court sitting en banc or the U.S. Supreme Court can overrule a prior decision in the same circuit; in other words, one panel cannot overrule another.
The Cabinet argues in its petition that child protective workers are “immune from liability for performing their duties” and that the panel’s denial of immunity conflicts with precedent.
The petition also argues that interviewing “child abuse victims” at their public schools is justified by the “compelling need” to protect children from abusive parents and that the panel’s decision will “chill the ability to protect children.”
The petition says the state’s “Prevention Plan” follows best-practices and protects abused children who are possibly “silent victims.”
Read the petition in full here.
Paul Hill, the Schulkers’ attorney, said he and the Schulkers just want the case to move to a jury.
“It’s been three years now of fighting the Cabinet just for our right to present our case to a jury,” Hill said. “If the Cabinet had acted reasonably in this case wouldn’t they welcome the opportunity to be heard by citizens within our community and the Cabinet lawyers can then make their arguments to those good citizens as to how the Schulkers were fairly treated?
“Now, Federal District Judge Bertelsman and three 6th Circuit Court Judges tell them their actions in this case “shocked the conscience.” Our goal is to try this case to a jury and let the jury hear the evidence and decide what should happen in this community. Why are they so afraid of a jury?
“No matter how long they delay the inevitable, we will get there.”