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2000 Jordan Institute
for Families

Vol. 5, No. 3
August 2000

Interview with District Court Judge Gary S. Cash

Judges have a tremendous impact on social workers and the families and children they serve. In the course of their daily work they make decisions about whether it is safe for a child to remain in her home, what course of treatment a parent needs to follow, or what steps DSS must take to support families.

In order to do their jobs well, child welfare social workers need to understand what judges expect of them and how judges see their own role in child welfare matters.

Yet the place they occupy in the courtroom, the rules and procedures of the court, their stern black robes—all these give judges an air of unapproachability.

To help you get a better sense of a judge's perspective, Practice Notes interviewed District Court Judge Gary S. Cash. A native of Oxford, NC, Cash received a law degree from UNC-Chapel Hill in 1976. After practicing law for ten years, he was appointed to be a district court judge in the 28th Judicial District, which serves Buncombe County.

PN: Can you talk for a minute about your philosophy and your goals for families and children?

I think I became involved in practicing law because I grew up with the philosophy that you felt best by helping other people. What gives me purpose in what I do is feeling that maybe there's a chance of helping a family resolve whatever conflicts there are so maybe they can move on with their lives.

This can certainly be passed down philosophically to helping kids, or help ing [parents] understand that if you want to have the kids in your home and not be placed in foster care you've got to deal with these problems—your substance abuse, your propensity to lose control of your temper.

I've always believed that if you can show people that you respect them and are concerned about them, though you feel they may need to have some consequences for poor behavior—that's more productive in modifying their behavior. Whereas if you approach them as a judge in terms of "you're bad and you deserve to be punished," the response you get is not too good. You don't necessarily modify their behavior. Most often you make them angry back at you.

When I reflect upon it that's exactly what I'm trying to do, to get people to modify their behavior in a positive way. That tends to work very well in juvenile court and domestic court, because families still have to continue to work together. The best situation that you can create, from where I sit, is where parents have to communicate. In most cases when I get the case, that's what's stopped.

PN: What are your expectations of social workers in your court?

I think quite often, and it's not just social workers, most witnesses think their job is to give their opinion.

From a judicial standpoint, what I'm looking for is not whether the social worker was concerned. That's an opinion, a state of mind. What I'm interested in is what the social worker saw. I need them to be my eyes and ears, I need that information.

What I don't want is the issue of whether the social worker was concerned. That's not admissable evidence anyway. If I made a finding where the social worker believed the Mom committed abuse, that finding is going to be ruled out by the court of appeals.

So I think the two most important things for social workers to remember are to review the notes or review the file, if you can, before coming to court—not necessarily bring it with you but review it—so you remember what you saw and heard. Then, focus on just being a factual witness as opposed to giving opinion testimony.

PN: Are there different expectations for guardians ad litem? Are they supposed to refrain from giving opinion, too?

The role of the guardian is normally the same as the social worker's—what did I see, what did I hear.

Additionally, neglect and dependency cases are divided into two phases, an adjudication and a disposition phase. The rules are different in those phases. You have to do adjudication before you can get to disposition, so if you determine as a judge that a child has been neglected, then you move to deciding what to do about it, the dispositional phase.

During the adjudication phase, the rules of evidence apply. I can only hear, unless you're qualified as an expert, what you heard, what you saw—factual testimony. And that would include testimony from the guardian.

When one gets to disposition, then the rules of evidence do not apply, and a lay person such as a guardian can state an opinion.

PN: What about the issue of foster parents appearing in court?

To foster parents I would say this: don't feel like you've got to be hidden. If you want to come to court, come to court. There may be an opportunity for you to say something in open court, to a judge. That's happened before. When we've gotten to the dispositional phase the foster parent just raises their hand and says "I'd like to say something." Judge: "Who are you?" Foster parent: "I'm a foster parent." Judge: "Sure, what do you want to say?"

PN: Has the Families for Kids initiative affected what happens in the judicial process or outcomes for families and children in Buncombe County?

I think certainly over the past five years the concept that the Kellogg foundation began to talk about a long time ago—fewer moves for kids, faster final resolutions of placement issues—has become ingrained in all of us. That general approach has been effective. The new juvenile code has addressed that in some respects. I think all in all, that initiative and other initiatives have made us more mindful to move things on, and we are probably better as a system in terms of addressing those issues.

PN: What is the best thing about being a judge?

The job is really about helping people. Just the resolution of a dispute helps people emotionally let go and move on to a different place. So even if you determine that a child has been neglected, it helps parents understand, "Okay, that's been determined. I'm not going to fight against that anymore. Now I'm going to move to the next stage, and that is, how am I going to get my kids back?"

That's really what I try to do, and I think that's the trend nationally and what judges focus on—"Let's move through adjudication. Let's get down to disposition. What does the department want these folks to do to get their kids back? Tell me the things. I'll structure them. We'll try to make it workable so the parents don't get overburdened. Do them, and let's get your kids back." That can be real healing, I think.

PN: What is the hardest part about being a judge?

I think the hardest part is probably not knowing the truth. They don't teach us how to tell if people lie. We certainly don't have crystal balls, never have had. So you're using your best logic, and certainly your feelings, to try to determine where you think the truth may be. Determining the truth is an elusive process that can be quite frustrating. It would be wonderful to know what's the truth.

[Not knowing] can be pretty frustrating, particularly in the serious DSS cases involving sex abuse. Most often, we don't know. We'll have a child medical examiner's report that's inconclusive, and we've got a little child whose credibility issues are, are there, and you've got a parent who's denying that he or she ever molested the child. And we've got a department [of social services] that as a matter of child safety has taken the position that "a child has made these statements, and we therefore are going to conclude this child was abused."

So judges take the information that's available and try to make a decision that is right, that follows the law, and that protects a child. And those can be competing goals. To know the truth would be a wonderful thing.

PN: Is there anything else you'd like to say to child welfare social workers or foster parents?

What one will get sometimes is an inquiry from a social worker or a foster parent or another person: "Judge, I'm really concerned about what Judge So-and-So is doing in these cases. I mean, he or she is not listening, or they're not reading the file—I've heard that—or they're being punitive, or being condescending to parents—a number of concerns. How do you address that? I'm afraid to go talk to that person because that may prejudice that judge against us when we're in court again if we say what we feel."

Write a letter. You don't have to sign your name, it can be anonymous. If you do that I think you need to explain why it's anonymous—you're writing it because you're concerned and you're afraid that you, the writer, will have to appear in court in front of that judge, and you're concerned that this letter may bias the judge towards you in the future, but you have these concerns.

People are wary, I think, of having personal discussions with judges. To some extent I think that's justified. We certainly don't want to talk about cases with people. And it is difficult to talk with judges, just because of their position, about their personalities.

But feedback is always good. We need to know, because we do operate so independently, that we're doing something that we can't see. We may elect to do it anyway if it's pointed out, but there's nothing wrong with you, as a person who has been in a courtroom a number of times, communicating your concerns.

 

2000 Jordan Institute for Families