Releases and Other Details
Fit Parent's Guide to Protecting Your Rights
While You Work Through the Court Process
This page is rather fun to write for me. It came about in my recent
fit parent case. The problem was that the current court order specified
that fit dad had to have Family Strength come in for parenting "help" for
some part of his visitation with his child. His old visitation supervisor
was from NFI, who went out of business during the winter of 2004-05.
When the Family Strength caseworker came to his home, she wanted dad to sign
all sorts of releases. Dad got suspicious, and sent them along to me.
The problem in a nutshell is this: Whether you challenge a court order or not, you
have to make a good faith effort to comply with the court order unless and
until it is overturned.
I didn't want any more visitation supervisors around for fit dad,
but accomplishing that until there was a court hearing was another matter.
When dad called me about the excessive paperwork the Family Strength caseworker
wanted him to sign, I stepped in. In the process of protecting dad's
rights before we got to Superior Court or back to District Court, I inadvertently
succeeded in keeping the caseworker out of the house altogether. You
may not succceed in keeping the visitation supervisor out of the house, but
you DO have rights.
First, my letter to Family Strength regarding the releases:
Administrative Office
85 N. State St.
Concord, NH 03301
Re: Fit Father
I represent [fit father], an adjudicated
FIT parent under the Child Protection Act, who, despite the fact that the
[ ] District Court ruled him fit in July of last year, is under
continual court order to have a parent aide for his “visitation.” RSA
169-C:19-e states:
– A parent who has
not been charged with abuse or neglect shall be afforded, upon request, a
full hearing in the district or family court regarding his or her ability
to obtain custody. At the hearing, the parent shall be provided the opportunity
to present evidence pertaining to his or her ability to provide care for
the child and shall be awarded custody unless the state demonstrates, by
a preponderance of the evidence, that he or she has abused or neglected the
child or is otherwise unfit to perform his or her parental duties.
My client is receiving
services from your agency based on an ORDER from the [ ] District
Court for continuing services in violation of his right to full custody of
his child. That ORDER is currently being appealed through a WRIT OF
CERTIORARI to the [ ] Superior Court. I also
asked that [client ] be relieved of any financial responsibility for “services”
provided since he was adjudicated a fit parent on [date redacted] 2004.
If granted, it’s very likely that [ ] County Human Services would
ask DCYF to reimburse them for unnecessary services. I suspect that
DCYF is (or was until I came along) looking for find fault with him through
documented parent aide reports so they can put his child up for adoption
with the foster mother without the benefit of an actual abuse or neglect
petition or finding. I’ve certainly seen this behavior before by DCYF.
There is no court order
for any set number of hours of parent aid services.
With this background in
mind, my client faxed me a large package of papers that his Family Strength
Parent Aid asked him to sign as a prerequisite to receiving Family Strength’s
services. I was frankly confounded by the fact that all of the Family
Strength documentation calls their services “health services.” This
makes me think that they will be attempting to bill Medicaid for their services.
As an attorney who represents parents in neglect cases, I find that label
disturbing. None of my clients can access Family Strength Services
with their Medicaid or other medical insurance coverage. If a parent
cannot get the services with their own Medicaid or medical insurance coverage,
their services are not “health” related.
As for my client needing
to sign releases for Family Strength to release its information to DCYF,
I will point you to the fact that the services are court ordered. Specifically,
the order states: DCYF “shall arrange for Family Strength to provide parent
aid services so that a new parent aide may be assigned as soon as possible.”
It doesn’t give or suggest a frequency for parent aide services. Since
we both know that DCYF can’t provide parent aide services 24/7 while the
parent has the child, and given the current state of the litigation, might
I suggest a one hour visit once a month prearranged to see how things are
going at home?
As for the specific documents
the Family Strength person asked [my client]. to sign:
1. Authorization
to disclose health information to county.
We
dispute that these are health related costs, and I won’t advise my client
to sign it. He certainly cannot access Family Strength services directly
and expect Medicaid to pay for them. The county is already getting
the bill from DCYF, so there is no need for him to disclose anything to the
county unless he suspects Family Strength is engaging in defrauding the state.
He will certainly do that voluntarily if necessary.
2. Payment
for Court-Mandated Services Information for Families.
This
document states that the state has a right to collect from the parents under
RSA 169-D:29. This is not a case under RSA 169-D, so it is the incorrect
form. The father is disputing the fact that he should be required to
pay for parent aid services in the absence of a finding he abused or neglected
his child. To the extent that RSA 169-C:27 might create a financial liability
on a fit parent not before the court, he is challenging the constitutionality
of that law in Superior Court. My client would prefer to wait until
the Superior Court rules on that challenge before signing the form. Since
Family Strength relies on payment from DCYF, not signing that form should
not impact your ability to provide services in the interim. If we prevail
in the Superior Court proceeding, DCYF will have to figure out how to pay
Family Strength for these services anyway.
3. SUMMARY
AND ACKNOWLEDGMENT OF RECEIPT OF NOTICE OF PRIVACY PRACTICES.
This
document states that “Family Strength may charge you a reasonable fee” for
its reports. The father is entitled to anything done by a contractor
of DCYF by virtue of his right to reasonable discovery. It is expected,
with the limitation mentioned below, that Family Strength will provide its
records directly to DCYF. He will not pay Family Strength directly
for any copies. The balance of the information seems to comply with
the new medical privacy requirements, and we dispute that this is a health
related matter, as stated above.
4. Child
Health Support Services Release of Confidential Information.
My
client doesn’t mind signing a release for DCYF as until the order for services
is successfully challenged, it remains a valid ORDER. However, I will
advise him to strike the references to “HEALTH” in the release before signing
it. I will add that the authorization is ONLY valid IF the Superior
Court upholds the ORDER FOR SERVICES, so Family Strength needs to be aware
of the current state of the court order before releasing any documents to
DCYF. FAMILY STRENGTH SHOULD NOT RELEASE ANY DOCUMENTS OR INFORMATION TO
DCYF UNLESS AND UNTIL THE SUPERIOR COURT UPHOLDS THE ORDER.
5. Permission
to Transport a Minor Child.
My
client is providing his own transportation for his child, so this is unnecessary.
This
court form is used by the superior court in divorce and custody proceedings.
I can’t imagine why Family Strength wants or needs financial information
on my client, and I will advise him not to sign it. [case specific
material deleted.]
I would hope that these
obvious changes in the signature requirements of your agency are acceptable.
Sincerely,
Paula J. Werme
[End of letter]
Knowing that Family Strength got this letter
before the worker returned to Dad's house to get her releases signed, I made
the changes I described on the release to DCYF. I limited the people
with which the information could be shared to DCYF and the guardian ad litem,
and I made the release valid only when and if the ORDER for services was
upheld by the Superior Court.
It wasn't my fault that Family Strength refused
to even provide services under those restriction. My client made a
good faith effort to comply with the order while he was challenging it, and
we never saw them again!
I'd call that a good day's work of
creative lawyering!
Last updated 2005 April 20
NH DCYF INFO
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