Bevin wants foster care settlement thrown out

Gov. Matt Bevin's administration wants a judge to throw out a court settlement that is intended to ensure that church-run foster care programs don't try to proselytize to children in their custody.

The administration this week asked a judge to toss out the settlement with the American Civil Liberties Union and Americans United for Separation of Church and State, saying that the state's position has changed because Bevin won last year's gubernatorial election.

"The Executive Branch of the Commonwealth of Kentucky underwent a change in administration and, in every respect philosophy, following Governor Matthew G. Bevin's election in November 2015," according to a court filing by the state Justice Cabinet and Cabinet for Health and Family Services.

The administration's stance first became apparent in a letter to involved parties in April, when M. Stephen Pitt, Bevin's general counsel, said the state doesn't believe the pact is "fair, adequate nor reasonable to the commonwealth or its private child care provider partners."

But Alex Luchenitser, a lawyer for Americans United, said the state cannot change course on the settlement forged last November by the administration of Gov. Steve Beshear, between the time Bevin was elected and sworn in.

"It's a binding agreement and there is no basis for the state to get out of the agreement," Luchenitser said in an interview.

The administration, in a statement late Wednesday, said it does not believe the agreement is binding.

"The Commonwealth of Kentucky, as personified in the Bevin administration, does not believe it to be in the best interest of the people of the commonwealth for outside interest groups such as the ACLU and the Americans United for the Separation of Church and State to have control of, or any a say-so in how state government operates, or in the decisions that it makes. Such outside oversight and interference is inimical to the interest of the people," the statement from the state Cabinet for Health and Family Services said.

The agreement was an attempt to settle the case of Alicia Pedreira, who was a therapist for Kentucky Baptist Homes for Children in 1998 when a photograph of Pedreira and her partner, another woman, appeared in an exhibition at the Kentucky State Fair. The organization subsequently fired Pedreira because it didn't agree with her lifestyle.

Pedreira filed suit in 2000 in U.S. District Court in Louisville, claiming that Kentucky Baptist Homes, now known as Sunrise Children's Services, discriminated against her because of her sexual orientation. She later amended the suit to add a claim that the group was using religious indoctrination on children in its care.

The court threw out her discrimination claim but allowed the claim that the agency was proselytizing to children to advance.

In the spring of 2014, Americans United and the ACLU reached an agreement with the state in which the two groups would be provided with copies of surveys and exit interviews with children placed with Sunrise, as well as the surveys and exit interviews with children placed in other agencies, but only if a state inspector general investigation had been initiated.

It also called for adding stipulations to contracts with child-care providers that they will not put religious symbols, texts or other religious items in a child's private room unless the child requests them – and then only after a good-faith effort is made to determine if the parent approves of the materials requested.

The two groups want to continue to monitor Kentucky's foster care agencies to ensure they are not trying to convert children. According to the agreement, the groups would be able to bring allegations of future violations back before the U.S. District Court for adjudication.

Last October the 6th Circuit Court of Appeals in Cincinnati remanded the case to District Court because, among other things, Sunrise has long denied any wrongdoing yet the agreement singles that agency out for enforcement.

A month later, the state Cabinet for Health and Family Services signed off on an amended order with the ACLU and Americans United providing those groups with the interviews and surveys of children at foster care agencies, Sunrise included, but only after the inspector general investigation was initiated.

It retains the provision that prohibits giving the child religious items unless requested. Both the original and amended agreement ban discrimination or religious coercion of any child. The ACLU and Americans United have asked the court to enforce the agreement despite the state objections.

Sunrise also opposes both the original agreement and the amended one.

John Sheller, a lawyer with Stoll Keenon Ogden representing the foster care agency, said Sunrise objects to the agreements for several reasons but primarily because he said the agreement puts enforcement of the agreement in the hands of the ACLU and Americans United, which brought the suit to begin with, and because it requires foster care agencies to turn over confidential information on its clients to the two groups.

Sheller said that although the children's names would be redacted at first, he believes foster-care programs would have to reveal the names of the children involved if the two groups found reason to believe that provisions of the order had been violated.

Furthermore, he said that even though the agreement calls for the suit to be dismissed, it allows the ACLU and Americans United to monitor compliance with the order and then bring the case back before the court, which he argues would simply extend an already long-running legal case.

"That keeps the litigation churning and brings us back into court," he said of the agreement Sunrise opposes. "We would prefer to have the case itself resolved, and if we’re vindicated we don’t have to go through that in the future."

The cabinet claims that the new agreement is invalid for numerous reasons, including that it violates the Court of Appeals ruling in part over a disagreement over whether the settlement is a "consent decree," and because, it argues, the Kentucky General Assembly would never agree to terms of the settlement.

Sunrise is scheduled to file a response to the ACLU and Americans United request to enforce the agreement later this week.

Joseph Gerth can be reached at 502-582-4702 or jgerth@courier-journal.com.