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Child abuse, neglect cases crucial, retiring jurist says

CHARLESTON, W.Va. - Cases of abused and neglected West Virginia children are occupying a good deal of the state Supreme Court's time, outgoing Justice Thomas McHugh said.

McHugh, whose term on the court ends with the New Year, said abuse and neglect is now a West Virginia epidemic. He said the cases are also the most important the state's high court now handles.

"It's impossible for me to relate to you in words or you to write how horrendous the conditions are of certain children in our society, particularly in West Virginia, which we're dealing with," McHugh said.

McHugh made his remarks during a two-hour interview with the Daily Mail just days before The Associated Press published articles on the abuse and neglect problem in West Virginia.

The wire service investigation revealed or highlighted a number of disturbing figures:

  • Children are dying from abuse and neglect at a higher rate in West Virginia than any other state. According to the National Child Abuse and Neglect Data System, the state had the highest death rate at 4.16 children per 100,000.
  • The number of abuse and neglect cases in the state's circuit courts nearly doubled over the past decade, from 1,628 in 2002 to 3,354 last year.
  • Court-appointed lawyers that help state judges make good decisions for abused and neglected children are paid $45 an hour for out-of-court work and $65 an hour for courtroom appearances - a relatively low wage by the profession's standards.
  • The Supreme Court sees this, though most members of the public do not.

    A good deal of the public attention to the court in recent years has been drawn by industry complaints or by lawyers touting large verdicts. Not incidentally, these moneyed interests also have the most to spend to bring their issues to the fore during elections and even in the political off-season.

    After rattling off a list of the kind of cases that draw public attention - multi-million verdicts, criminal cases with large sentences - McHugh said, "all those other cases pale in comparison to the obligation of a court - circuit court and this court - to ensure that the children of this state are being treated fairly."

    To McHugh, that's a simple statement.

    "I don't want to say 'that's just money' in these other cases we're talking about, but the children get lost in the process," McHugh said.

    McHugh said justices meeting in private to review appeals to the court could discuss dozens of abuse and neglect cases in an afternoon.

    McHugh said parents are routinely appealing circuit court judges' decisions to take away their children.

    "There are days in which I sit in this court - and every member of the court does - we will go over 45 or 50 cases involving children on abuse and neglect," McHugh said. "The public doesn't see this, right? The public doesn't see this part."

    During that time, justices are not talking about weighty constitutional issues or intricate questions about tax law or corporate liability. Instead, the state's top legal minds are sitting in the Capitol and reading about children who have been sexually abused or left in homes without food or in beds in their own excrement.

    McHugh remembers one case where two infants were put in a bathroom, not let out and fed through the top of the door that had been sawed off for that purpose.

    McHugh, who was a Kanawha County circuit court judge during much of the 1970s, said the number and nature of abuse and neglect cases is different now.

    "When I was a circuit judge I saw it, but not nearly like you see it today; you didn't have that extensive drug and alcohol problem in those days," McHugh said. "But, today, you talk to any circuit judge and they will tell you the most difficult cases they have are the abuse and neglect cases."

    The patience of circuit court judges is also wearing thin.

    In the past, McHugh said judges went out of their way to try to help parents improve their homes and keep their children. Now, courts are less patient, McHugh said. The window for parents to clean up their act is narrowing. That's because judges have seen parents again and again fail to change their ways.

    "It doesn't happen generally because of the drugs and alcohol, so the trial judge has to say, 'That's it,' " McHugh said.

    Instead, McHugh said courts are trying to get children out of abusive and neglectful homes and put up for adoption or into foster care.

    But the courts are involved only after investigations are done and paperwork filed by the state Department of Health and Human Resources' Child Protective Services, or CPS.

    Those CPS caseworkers are known for being underpaid and overwhelmed.

    One CPS caseworker told McHugh he was handling 130 cases at once.

    "How can you possibly do justice to that particular case or those children?" McHugh said.

     McHugh said the failure is probably attributable to poor funding for some parts of DHHR. That is an issue that politicians and the public do not tend to seize on, despite the effect a poor childhood can eventually have on truancy, graduation rates, crime and overcrowded prisons.

    "I know DHHR tries to get the money and they try to get the assistance, I would hope, for the CPS workers," McHugh said. "But I know the CPS workers are overworked and that's the breakdown in the system, that's the problem."

    Also underpaid, McHugh said, are the court-appointed lawyers who are supposed to help judges decide what is best for children. These lawyers are known as guardians ad litem.

    Earlier this month, the Supreme Court warned lawyers to stop submitting sloppy, rambling and frivolous appeals. In the court's 16-point warning, at least two of the items were directed at lawyers in abuse and neglect cases, particularly late filings by guardians ad litem.

    McHugh said the low salaries of these court-appointed lawyers is part of a larger problem.

    "The amount of money being paid to guardians ad litem in abuse and neglect is controlled by the Legislature, and that's where the breakdown is occurring," McHugh said.

    Reflecting on more than 20 years on the state Supreme Court and all of the constitutional questions and headline-grabbing cases, McHugh dismissed all that and focused on the abuse and neglect cases flooding into the high court.

    "Even great constitutional issues, you can talk about (that) one decision in that one case and it has far reaching implications - but not nearly the same implications as, 'Did we take care of that child?' " the father of four, grandfather of seven and great-grandfather of two said.

    Contact writer Ry Rivard at ry.rivard@dailymail.com or 304-348-1796. Follow him at www.twitter.com/ryrivard.

     


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