Time to get to work and live the American Dream!

Teddy Roosevelt, Rough Rider and 26th President of the United States

When I was a kid I didn’t hear my parents talk politics. They ran their own businesses and enjoyed their free time doing fun things. I recall many weekends hunting and fishing, and boating at the lake house. They encouraged us kids to pursue extracurricular activities in middle and high school. I was a band geek until high school then transitioned to speech and debate. I had a fun childhood.

Mom and Dad always had good attitudes, and taught me to work hard and be optimistic. My parents showed me the difference a good attitude makes. Dad never considered not being successful at his business so it grew bigger and more successful every year. Mom was the model Zig Ziglar acolyte. She had (and still does) a positive mental attitude to the extreme, which resulted in her being a multimillion-dollar producer with both her real estate brokers, first Century 21, then Lou Smith Realty. Mom made me attend motivational seminars with her in high school. Zig Ziglar’s See You At The Top is still one of my favorite books of all time.

The early 80’s real estate crash hit them hard. It’s the only time in my childhood I remember them sharing negative thoughts. Yet, they pressed onward and turned lemons into lemonade when that’s all they had to work with. They were never defeated, and were always positive around us. As far as I knew, the economy was always great and thankfully they never made excuses, they just worked a little harder every now and then.

My childhood would have been very different if all my parents did was complain and moan about this or that politician, and this or that obstacle. Their economic future wasn’t dependent on one political party or another winning an election. It depended on their own blood, sweat and tears.

“The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.” —Teddy Roosevelt

What’s the point? Simple. We must latch on to the good news we’ve heard the past couple of days regarding a V-shaped economic recovery and get to work. Stop complaining about our leaders in D.C. and Topeka, at least from 8-5 now that we can go back to work and get something productive done. Imagine if that’s what we did between now and the August primary, then pressed into it again until the November 2020 elections. There are more than enough people wearing sackcloth and ashes to inform voters of the issues between now and these critical dates. Putting the time to best use by priming the economic pump so we take back what Covid-19 took from us is the absolute best thing all of us can do to regain the freedoms we were forced to give up during this awful season.

When I get worked up about things I have no control over I tend to neglect things I do control, which is very unlike Mom and Dad. Why get stressed and anxious when friends of different political persuasions express ideas I think are bonkers? Why should they get worked up when I share ideas they think are nuts? Just listen kindly, watch 30 minutes of news to get caught up, read a few choice online news journals, then get to work doing positive, productive things, sometimes with those friends who don’t always agree with me.

Today, my parents are very politically engaged. Why today when they weren’t when I lived at home? They retired. Now, when Dad isn’t fishing or hunting, and both aren’t working on their real estate properties, they are calling me to talk politics. They must have too much free time on their hands.

One of many from Dad’s most recent haul last week in Venice, La

We need to emulate men like Alexander Hamilton and stop making excuses for failure

Alexander Hamilton was an enigma, especially if you imagine him living in today’s world. He was effectively fatherless. His father was indebted and a drunkard who abandoned Alexander and his mother at an early age. Fortunately, he had family in the colonies and they set him up in an apprenticeship. Hamilton had all the excuses in the world to be a slacker and loser (just like his father), yet he used logic and reason to conclude that the surest path to success was hard work, study, and commitment to excellence.

Hamilton’s commitment to excellence led him to University where he excelled. When the Revolution hit America, Hamilton didn’t hesitate to fight for his country and served as General George Washington’s aid de camp. Washington saw Hamilton’s brilliance and relied on him throughout the war and during his presidency. Hamilton’s education and experience led him to believe in the merits of a strong central government and capitalism. He believed that hard work supported by a central government that protects the people’s rights were keys to America’s future.

Debating whether Hamilton’s federalist approach or Thomas Jefferson’s state’s rights/anti-federalist philosophy is best isn’t the point. The point is that Hamilton didn’t have government largess to fall back on. He had the grey matter between his ears, his hands and feet, and the clothes on his back. That’s all. The rest was up to him. He worked hard every chance he got, impressed everyone who knew him with his diligence, intelligence, and expertise, and took advantage of every opportunity by giving it his all. In the end he is known as one of America’s most influential founding fathers.

The other founding fathers were privileged. Washington, Jefferson, Adams, Madison, et al., were part of the landed gentry. Yet, they welcomed Hamilton into their circles because he made the most of his natural talents by working hard and putting them to the use God intended. They needed Hamilton to form this nation. In addition to helping write the founding documents, he was one of three authors of the Federalist Papers, which were published anonymously in the colonies’ newspapers to convince the states to ratify the Constitution.

What if the founding of our nation happened today, with today’s mindset that if you aren’t blessed with wealth or notoriety you have no chance to forge a successful path in life? Imagine if Hamilton took offense at everything his fellow founders said about lesser castes such as the one he came from. One, he would have likely left those circles early on. Two, they would have kicked him out the first time he accused them of stealing from the lesser classes and keeping them in subjugation.

The gap between haves and have nots was much greater in 1776 than now, yet a poor man like Hamilton still desired to live off the sweat of his brow, and did so to great success. He didn’t blame the wealthy for his lack of opportunities. Young people would be wise to read about Alexander Hamilton and strive to be more like him and less like their contemporary whiners who look for reasons to fail instead of succeed.

I recommend reading Ron Chernow’s Alexander Hamilton. It’s excellent.

Be thankful for what we have not what we don’t

We are in strange times. After a massive shut down of the economy and hunkering down in our houses for almost 6 weeks, we will soon be able to get our hair cut! Seriously. I just got a text from my stylist asking me if I wanted to set an appointment for May 22. Heck yeah! Finally, something normal.

I say that just half in jest. But honestly, let’s put this latest crisis in perspective by comparIng it to past crises. I’m reading the latest Erik Larson book, The Splendid and the Vile, which is about how Winston Churchill dealt with WWII and specifically prepared for the Battle of Britain. Imagine hundreds of thousands of planes flying overhead every night and dropping bombs on you and your city, people dying in your neighborhood every day.

Remember the story of Anne Frank? She was a Jewish girl in Amsterdam. She and her family hid in silence in an attic for 2 years before the Germans found them, then she died in a concentration camp.

The Jews were enslaved by Pharaoh and Egypt for centuries before God delivered them out of bondage. Pharaoh killed the first born of the Jews, for goodness sakes. Imagine dealing with that tragedy.

Blacks in America were enslaved until we fought a Civil War to free them at the cost of more than 600,000 dead Americans from the north and south. Southern states kept them in bondage through Jim Crow laws for another hundred years.

The American Revolution, the War of 1812, the Civil War, WWI, WWII, Korea, Vietnam, Iraq, Afghanistan, Lebanon, etc. While America played a part in these wars, the civilians in other warring countries paid a much higher price than our nation. In fact, our economy boomed during and after most of those conflagrations. Their peoples suffered, starved, survived horrific acts of war, and died. Many emerged much less free and secure than the American soldiers who helped fight their wars.

Of all the places I’d want to be at the tail end of a pandemic, it’s America. So, be thankful. If you were in any other nation on this earth, your lot would likely be much worse.

God bless America!

Stay safe,

Hon. Kevin M. Smith

A Judicial Philosophy

A little more than 4 years into my time as a judge I’m happy to say that out of more than a dozen cases that were appealed from my court, the court of appeals affirmed all. The record supported my decisions. Conversely, getting those decisions “right” was at times heart wrenching, a feeling that every good judge shouldn’t hesitate to experience.

Judges cannot be arbitrary. Attorneys and litigants shouldn’t feel like they’re playing craps in Vegas every time they appear in a judge’s courtroom. A judge should hear the facts, apply the facts to the law applicable to each case, then make a decision based on this almost scientific approach. To do otherwise constitutes legislating from the bench, which is dangerous and unpredictable.

“The task of a judge is not to make the law – it is to apply the law.” ~ Supreme Court Justice Sonia Sotomayor

“Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.” ~ Supreme Court Justice Antonin Scalia

This may sound harsh, but my feelings shouldn’t interfere with this process. If the facts of a case line up with the elements of the law, I am bound to render the decision demanded by that process. It’s the only proper way to judge. Parties have an idea what to expect when a judge follows this philosophy.

Sometimes proper judging hurts my heart. Most of my cases so far involved termination of parental rights. Anyone who thinks this is without emotional consequences is clueless. I had a few sleepless nights during my time in CINC court. While I knew the families that stepped up to adopt the kids loved them and would take great care of them, I also knew there’d be trauma to go around, both with the biological parents who lost their parental rights and the children who would ask themselves for a very long time if there was something they did to drive away their parents.

The same thing happens in all areas of law: domestic, criminal, debt collection, and civil litigation. There will always be winners and losers, and sometimes these cases are close calls. Close calls take an emotional toll on judges, and we must not let that reality impact our decisions. The facts are the facts and the law is the law.

I suppressed evidence obtained through illegal searches. I overruled motions to suppress allegedly illegal searches. I found criminal defendants guilty. I found criminal defendants not guilty. I even found defendants not guilty when they violated the terms of their diversions when the stipulated facts were insufficient to establish guilt beyond a reasonable doubt. I approved lots of search warrants. A also denied a few warrants. The facts and the law compelled me to make each and every one of these decisions.

I also believe that as the judicial canons state, judges should engage in community outreach to positively impact the administration of justice, and write on important legal issues to accomplish the same objective. I’ve taken this to heart by speaking to churches and community organizations about the importance of community involvement in foster care support over the past few years, and will continue to do so even though I’ve been “promoted” to the civil division. I’ve also published at least one law review article a year and presented continuing legal education programs to provide useful information to attorneys. I firmly believe that judges should be involved in their community and the bar to enhance the administration of justice and I will continue to do so.

As the 2020 election draws near, you should know what kind of judge you are voting for. I appreciate your support.

God bless and stay safe,
Hon. Kevin M. Smith

Patriots endorse America not political candidates

I cannot and will not endorse political candidates due to the judicial canons. It’s unethical. But I love America and the opportunities it’s given to me and my family.

I come from a humble background. My dad was a TV technician. My mom a real estate professional. Neither Dad nor Mom graduated college. They just worked hard. Dad built an electronics service business into a successful enterprise. My mom was a top real estate sales person for 2 different agencies. Both started with nothing (except each other). They are now happily retired real estate investors living out their golden years in Texas. Only in America can people of such humble beginnings accomplish such success and wealth accumulation.

They taught me the truth in Zig Ziglar’s mantra, “Success is dependent on glands—sweat glands.”

Thanks to Mom and Dad, I graduated college. After selling copiers, typewriters (back when every office used them), over-the-counter pharmaceuticals, then biologicals (pediatric vaccines), I went to law school. I practiced law for a couple years for a corporate firm, as an Asst. DA with Sedgwick County, then hung my shingle and practiced law as a solo practitioner for almost 14 years before becoming a judge. I also followed my parents’ lead while in private practice by investing in real estate.

Lots of credit for where I am now certainly goes to Mom and Dad, and my wife, Mona, and three awesome daughters, but the bulk of the credit goes to the American Way. I am proud to live in a country that embraces the dreams and aspirations of individuals driven to succeed by the success of those who came before them. This makes me a patriot. I love the Anthem and the Pledge of Allegience, and cringe when others express their hatred of them and for the country they represent.

This is why I take every opportunity I can to point out how much better America is than other countries, even when dealing with the coronavirus crisis. I am proud that it seems that, at least at this stage, America is responding better to this crisis than most other nations. This is most obvious with the death per million number. As of April 1, 2020, the USA’s deaths per million is 13. Of the top 10 nations (number of cases), only Germany is better at 10. While this number will only get worse, at least 3 of the top 10, Italy, Spain and the U.K., are adding so many new deaths each day that we will never surpass them, and most others as a percentage of population are likely to stay well ahead of us as well. https://www.worldometers.info/coronavirus/.

Don’t say “but what about China and Russia?” No one with a brain trusts their numbers because they are totalitarian regimes that tamp down information along with the freedom of their citizens.

America is also dealing with a population of 327 million, which dwarfs all of these other nations, so keeping this most heinous measurement under control is notable, and I’m proud to be in the most capitalist of these counties, the most free even with the restrictions we are living under at the moment, at this point in history. We are experiencing the bounty of Americans’ freedom to do business and engage in capitalist exchange in the face of a pandemic. We are rising to this unique challenge just as we did in other difficult times because of these freedoms.

One final note to consider. ALL of the other top 10 nations are less capitalist and more socialist than the USA. Their health care systems are also more socialist than ours. Freedom matters. Freedom spurs entrepreneurs and businesses to take care of the sick and elderly. Freedom spurs businessmen like Elon Musk and Mike Lindell, and great American companies like Ford and General Motors, to sacrifice profits to make personal protection devices and ventilators just like many like them did when we went to war against the Nazis. They don’t have to be forced to do anything because they know what country they owe their freedoms and success to.

I am a patriot. I love America. I know we’ll emerge from this very dark tunnel stronger than before, and probably stronger than all other nations with less freedoms and opportunities. Please don’t accuse me of endorsing any candidate. I endorse America.

Words of encouragement for anxious times

I’m Judge Kevin Smith of the 18th Judicial District. I’m coming to you today in my own capacity and not as a representative of the District Court to give you some encouragement in this very difficult time for our city, county, state and country.

The district court is all but closed thanks to the coronavirus pandemic. I’m in civil and set all of my hearings this week and next a month out so attorneys and litigants could stay home and take care of their families. Beginning week after next, I will hold telephone hearings for civil motions but no trials. Only emergency hearings are happening now, which primarily includes criminal cases, PFA/PFS hearings, and some CINC matters. Suffice to say that the coronavirus pandemic is impacting everyone.

Vigilance is the theme today. If you follow me on Facebook, @kmarksmith, you already know how I feel about the coronavirus pandemic and the measures being taken to limit transmission of the virus to vulnerable populations.

I don’t like the virus or the fact that we’re having to give up a measure of freedom to fight it, but if we are vigilant in complying with the stay-at-home and crowd-size orders, we will beat this thing sooner rather than later.

I encourage you to read the essay I posted on the legality of stay-at-home and crowd-size orders, as well as watch the Alliance Defending Freedom video. I conclude that under current case law the Supreme Court will likely find them constitutional. BUT, as a conservative who believes in the founding fathers’ vision of freedom and liberty, we must be vigilant in another sense.

As Benjamin Franklin put it, “Those who sacrifice freedom for security deserve neither.”

These restrictions must be rolled back as soon as possible. Also, they must not be expanded beyond what is necessary to fight the virus. For example, Los Angeles County Sheriff Alex Villanueva ordered all gun stores closed as “nonessential.” If these stay-at-home orders expand to explicitly bar the exercise of other constitutional liberties, there’s a problem that even the Supreme Court might find objectionable.

Thus, we must also be vigilant by keeping an eye on government to keep it from turning this crisis into an excuse to tamp down essential liberties such as the right to keep and bear arms, the right to practice our religion, and the right to be free from unreasonable search and seizure.

Be vigilant fellow citizens by practicing social distancing and making sure government doesn’t exceed its mandate to keep us safe from this unprecedented health crisis. Also, pray. I pray for you and our leaders who are making very difficult decisions through this crisis.

God bless and stay safe,
Hon. Kevin M. Smith

Like it or not, the temporary restrictions on our freedoms are constitutional

There’s lots of discussion on the legality of stay-at-home and crowd-size limit orders, specifically, whether they violate the Constitution. The most applicable amendments are the 1st, 5th, and 14th, under the rights to assemble, of religion, and due process. Following is a very brief analysis based on case law. I will skip a summary of the facts leading up to these restrictions on our freedoms and go right to the legal analysis.

First, an argument can be made that since these restrictions aren’t directed toward a particular group or viewpoint the Constitution isn’t an issue at all. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court considered whether a law banning the possession of peyote improperly infringed on Native American’s religious practices. “Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion ‘would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.’ Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.” See Oyez summary of holding, https://www.oyez.org/cases/1989/88-1213. Here, while the stay-at-home orders and bans on groups of 10 or more have a huge impact on churches and religious organizations, they are generally applicable to everyone regardless of specific viewpoints or beliefs. It’s notable that Scalia cited as examples “compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws” since such laws and regulations are infringements on personal liberty. Just as the laws banning peyote are applicable to everyone including those who use the drug to practice their religion, so too are citizens bound by stay-at-home and crowd size orders due to the covid-19 pandemic and the need to limit person-to-person transmission of the disease, and not hostility toward any one group’s viewpoint.

More applicable are various government efforts to regulate behavior to protect the public at large or one specific class subject to discrimination. In ROBERTS, ACTING COMMISSIONER, MINNESOTA DEPARTMENT OF HUMAN RIGHTS, ET AL. v. UNITED STATES JAYCEES, 468 U.S. 609 (1984), the court considered a state law that prohibited discrimination based on sex that was applied to require a private men’s organization to admit women. The Jaycees barred women from its membership. They clearly had the First Amendment freedom to associate with whomever they chose, but Minnesota banned sex discrimination, and these goals conflicted with each other. The Court held that compelling the Jaycees to admit women didn’t infringe on their freedom to associate with each other. More important, it applied the strictest scrutiny to Minnesota’s anti-discrimination law finding that “Minnesota’s compelling interest in eradicating discrimination against women justified enforcement of the state anti-discrimination law.” Also, “that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint.” See Oyez summary of holding, https://www.oyez.org/cases/1983/83-724. The latter aspect of the holding were the seeds of the Smith decision previously discussed. Even with this strict scrutiny standard of review, given the compelling governmental interest of saving lives, and the fact that the measures we are dealing with merely serve to limit contact with those who might be infected but aren’t yet tested or quarantined, it’s likely that these restrictions would survive a challenge.

As I write this, India, with a population of 1.3 billion people, went on a lock down to contain the spread of covid-19. Add to this the fact that most of Europe is on lock down, and it’s difficult to argue that our very minor restrictions thus far aren’t justified.

We are dealing with what some have called an existential threat to life, a literal pandemic that absent extreme mitigation measures will kill a million or more Americans. You may disagree with this assessment, but there’s general consensus in the medical community in America and abroad that covid-19 is more deadly and dangerous than any pandemic in our lifetimes. Thus, it’s likely that any reviewing court will apply the more appropriate intermediate scrutiny standard. Under this standard, all the government must show is that the measures are reasonably related to an important governmental interest. In O’LONE, ADMINISTRATOR, LEESBURG PRISON COMPLEX, ET AL. v. ESTATE OF SHABAZZ ET AL., 482 U.S. 342 (1987), the Court considered whether prison restrictions on inmate mobility that prevented Muslim prisoners from attending their faith’s mandatory worship ceremonies violated the freedoms of assembly/association and religion. “Jumu’ah is commanded by the Koran and must be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer. (Citation ommitted.) There is no question that respondents’ sincerely held religious beliefs compelled attendance at Jumu’ah.” Ibid. at 345. Restrictions on prisoner mobility were necessitated by security issues that arose from allowing prisoners to enter and exit the prison before the end of their outside work assignments. These restrictions resulted in Muslim prisoners not being able to attend Jumu’ah. Ibid. at 347.

The Supreme Court applied the intermediate scrutiny standard finding that the policy had “a logical connection to legitimate governmental interests.” Shabazz, 482 U.S. at 350. See also TURNER ET AL. v. SAFLEY ET AL., 482 U.S. 78 (1987) (finding strict scrutiny doesn’t apply to penal regulation analysis); c.f. CITY OF CHICAGO v. MORALES et al., 527 U.S. 41 (1999) (gang restrictions not unconstitutional on their face but due to too much discretion and lack of notice, they violated 5th and 14th amendments’ due process requirements). The legitimate interest was prison security. Restricting movement from outside to inside the prison had a logical connection to this interest.

While some might argue that current restrictions are too strict and that our leaders should have imposed less onerous ones, the Shabazz Court did not require the plaintiff to identify an alternative means to satisfy the legitimate interests. Shabazz, 482 U.S. at 350. This requirement would require a strict scrutiny analysis (least restrictive means), and the instant emergency would likely not compel the court to require such analysis.

In summation, you may not like the restrictions that are imposed on our freedoms, but the worldwide pandemic that led to them will likely result in a court finding them constitutional under existing law. This doesn’t mean that I agree that existing law is an accurate interpretation of the First Amendment, just that the U.S. Supreme Court is likely to apply these cases to any challenge of the orders.

This too shall pass

We are Americans! We will emerge stronger than before.

Two weeks ago I didn’t imagine I’d be living in the midst of a pandemic so widespread that every country in the world would be impacted. I didn’t imagine that citizens in the free world along with socialist and communist societies would be ordered to stay home and not leave except for necessities. Yet, here we are.

Faith is an important part of my life. I spend time most mornings reading my Bible and praying for comfort and direction in my life, and for family, friends, and others who need God. When times are tough I see the purpose to this daily habit—my mind is flooded with things I’ve studied before that apply to such times. Today, Ecclesiastes 3:1-8 comes to mind:

“For everything there is a season, and a time for every matter under heaven: a time to be born, and a time to die; a time to plant, and a time to pluck up what is planted; a time to kill, and a time to heal; a time to break down, and a time to build up; a time to weep, and a time to laugh; a time to mourn, and a time to dance; a time to cast away stones, and a time to gather stones together; a time to embrace, and a time to refrain from embracing; a time to seek, and a time to lose; a time to keep, and a time to cast away; a time to tear, and a time to sew; a time to keep silence, and a time to speak; a time to love, and a time to hate; a time for war, and a time for peace.”

Seriously, there is “a time to embrace, and a time to refrain from embracing.” Ecc. 3:5.

Some who read this passage don’t find comfort. In fact, when you consider the bad portion of each verse, it’s depressing. Yet, when you consider it in light of our own history, it’s encouraging. On a lighter note, you can’t have a rose without the thorns. In America’s history, we have experienced far more roses than thorns, yet we are foolish to ignore the reality that just as God promised in Ecclesiastes, and we’ve experienced as Americans, you cannot have the good without the bad. Now’s a good time for a brief history lesson as proof of this truth.

King George and parliament used the colonies to fund their wars. When the colonists resisted taxation without representation and the siezing of arms, British troops invaded. The colonists came together knowing that if they lost, they would sacrifice not only their liberty and property, but their lives. As Benjamin Franklin put it, “we must hang together or we’ll surely hang separately.” Patriots died. Everyone suffered. But the bad times passed with victory, and blessings followed. It also resulted in the Declaration of Independence, the Constitution, and the Bill of Rights, which we will soon need to ensure that this crisis doesn’t end as an excuse to wrest away our freedoms and inalienable rights.

The British didn’t take the loss well. In fact, in the time leading up to the War of 1812, they seized America’s merchant ships and forced American sailors to serve in their navy. America declared war on Britain. Britain invaded America and burned the capital to the ground. We won again. But there was again sacrifice and fear, followed by blessings.

There were other sacrifices and difficult times in between, but the most apparent time of sacrifice to follow was the Civil War. Indeed, one group of Americans were continuously victimized and not experiencing any time of blessing, slaves, from the nation’s founding up to the Civil War. Put where we are now in context of America’s slaves, who were beaten, abused, sold out of their families for generations. Slaveholders even used the Bible to justify this oppression. This injustice led to a war where more than 600,000 Americans died and countless treasure sacrificed. (Please spare me the “states’ rights” argument.) Our president was assassinated, and this resulted in a reconstruction period that ensured that former slaves would live as second class citizens for another few generations.

More than 116,000 Americans died in WWI. The Spanish Flu pandemic that followed killed another 675,000.

More than 416,000 Americans died in WWII.

Almost 34,000 Americans died in the Korean conflict.

More than 58,000 Americans died in the Vietnam conflict.

More than 7,000 Americans died in the 1st and 2nd Iraq and Afghanistan conflicts and occupations.

Add to the sacrifices in these wars and conflicts economic setbacks of various recessions and the Great Depression, and it’s obvious that the current generation has been spared from much sacrifice. We are a little spoiled.

But the purpose of this post isn’t to criticize our reaction to the covid-19 crisis and how our government is responding, it’s to point out what has always happened in times of crisis throughout our history. We always persevered and emerged stronger. Pastor Darren McClintock of Central Christian Church began our online service this morning with Psalms 30:5: “For his anger is but for a moment, and his favor is for a lifetime. Weeping may tarry for the night, but joy comes with the morning.” We’ve lived this truth time and again. We’ve sacrificed. We’ve chosen to be optimistic about the future. We always experienced joy in the morning.

It’s not Christian and certainly not biblical, but the phrase “this too shall pass” has truth in it. The covid-19 pandemic shall pass. When it does we will remember the bonds that we renewed with family and friends, and the shared sacrifice we made to survive and eventually thrive. Just like Americans have been doing for centuries.

God bless you, your family, and friends,
Hon. Kevin M. Smith

Time to stop assuming foster kids aren’t our problem

Following is a speech I’m giving to the Wichita Metro Crime Commission next week. If it inspires you to action, email me at 4acelaw@gmail.com to set up a time for me to present this issue to your church or civic group.

Thank you for the opportunity to talk about juvenile justice and the foster care system. For far too long we’ve looked at these two areas of law as necessary evils and ignorantly refused to make the connection between them and the rest of the legal system. Today I will share with you indisputable proof that our failure to acknowledge their importance—that they are the gateway courts to every other problem we face today—has made us less safe and financially solvent as a society. I will also share the sad reality that waiting for DCF or government to solve these problems will just exacerbate the problem. States across the country have been adopting the latest trends in foster care and juvenile justice reform for years, and we still have problems, perhaps even more so than had they not acted. I will also share with you indisputable proof that we can immediately impact case outcomes and thereby protect our community from the worst outcomes by getting personally involved.

Child abuse and neglect is a problem that’s impossible to ignore. Seems like every couple weeks we see a report of a dead child. It also seems that all of these cases in Kansas involve DCF, as if Kansas is the problem. However, this is a mistake. The truth is Kansas isn’t great, or poor, but average and perhaps a little better than average. For example, a few years ago Florida audited its DCF agency and discovered that over a 5 year period, almost 90 children were dying every year while abuse investigations were pending. California averages 50 foster care deaths per year. Colorado averages more than 20. One study revealed that Kansas’s foster care death rate is about half of where it should be based on our foster care population. So, regardless how tragic each of these deaths is, it could be/should be much worse.

Kansas does remove more children from homes than other states, such as Florida. But another way to look at it is that perhaps removing more children than other states might be a good thing—we don’t experience the high death rate before removal that other states do.

In 2019 DCF received more than 14,000 reports of abuse in Sedgwick County. With less than a couple dozen investigators, they triaged these cases down to 672 filed cases, which is more than the 583 in 2018. That’s about 4% of the reported cases. Just under 1300 children are in out-of-home placements overall. It’s been many months since we read about a foster child death. Unless they are being swept under the rug, you can count on one hand the foster child deaths each year. But, there’s more to this story than instant, easy to see tragedy.

The KC Star received permission to survey prison inmates in several states to determine if they were products of foster care. More than half-a-dozen completed their surveys before the Star’s multi-part series of articles broke. Nationally, 1 in 4 inmates were foster kids. The worst state was Kansas, with 1 of 3. We have 11,000 inmates. If that number applies to all inmates and not just the responders, that’s almost 4,000 who are products of foster care. So, let’s dispel the myth that this isn’t our problem. Foster kids victimized by the system and heartless citizens who look the other way leads some former fosters to steal, rape, or kill and thus make it everyone’s problem.

Here’s what we know about good foster care outcomes. Kids do better when they are placed in their communities. Kids do better when they are placed with relatives. Kids do better when they can see their parents while the parents work on their problems. Kids do better when we place them with families equipped to deal with their unique needs and personalities. Kids become productive adults and good parents when they graduate high school and take advantage of free college and trade school education available to them as foster children.

Good outcomes are not happening enough in Kansas. Once a child is removed from the home it’s a long, drawn out process that sometimes does more harm than good. The overall out-of-home placement length is 20.5 months; reunification case plans, 9 months; adoption case plans, 39 months. Sadly, this is made worse by the lack of sufficient foster placements. For example, of that 1300 Sedgwick County number, only 800 were placed in Sedgwick County. Statewide, we have approximately 2,700 foster families for more than 7,600 kids. This makes it hard to ideally match kids with families equipped to care for them, which leads to multiple disruptions. Over a 1,000 day case length, the average number of placements is 10.

The best measurement as to the damage the system inflicts on these children is graduation rates. In 2019, less than 39% graduated high school. It’s just 30% in the Wichita Region, the second lowest of the 4 Kansas regions. Seems to me that this pitiful number is probably what leads to the hopelessness that compels these kids to turn to crime. On that note, one study shows that for foster kids in 5 or more placements, 90% will be involved in the criminal justice system. Again, Kansas’s average over 1,000 days is 10!

So, now that we know how awful the situation is, what’s the solution? It’s us.

There are 513,000 residents in Sedgwick County. 49k claim to be Protestant Christians; 79k claim to be Catholic Christians. Only 800 families are available to foster; that’s less than 6/10ths of 1% of the believers, and less than 2/10ths of 1% overall. So, the first thing we need is more citizens stepping up to foster. 1% of the Christians would be just enough to meet the need. 2% and we could perfectly match them and cut down on the number of placements.

Fostering is a 24-7 proposition. There’s another less time consuming option that dramatically impacts case outcomes. Become a Court Appointed Special Advocate, or CASA. CASAs spend 10-15 hours a month on just one child or family of children. They meet the child, keep an eye on the case, and report to the judge what’s being done or not being done by the parties. While this sounds like a small commitment, the impact is profound. 77% of kids with CASAs graduate high school. USD 259’s overall rate is just 74%. Almost 7% of kids reunified with their families are removed within 12 months; less than 1% of CASA kids are removed. It also has a dramatic impact on the runaway rate and helps DCF locate runaways when they leave their placements.

In 2018 we were only able to help 152 kids with CASAs. After telling this story to churches and civic groups, in 2019 we helped 220. Better but several hundred less than we need.

Finally, Sedgwick now has the Youthrive mentorship program for kids 17-21 years. Johnson County’s experience is that 80% of YT kids graduate. Cara Mattson tells me that they have 32 mentors. However, they need men, and almost all mentors are women.

Two weeks ago Gov. Kelly announced that she wants to consolidate DCF, the department of aging, and the juvenile justice system under one umbrella. Bigger is always better, right? I suspect that this is another dramatic change that might look good on paper but won’t move the needle on case outcomes. Even if it does impact outcomes, it will be years before we see the results. In the meantime, we need to help Sedgwick County kids NOW.

Here’s what you can do to dramatically impact at least one child’s life:

Be a foster parent. We have several agencies here, including SFM, Ember Hope, DCCCA, Salvation Army, Restoration Family Services, and KVC.
Be a CASA. Contact CASA of Sedgwick County for details.
Be a Youthrive mentor.

We know that if more citizens step forward to help these kids directly, we will save them from a system that destroys their hopes and dreams. Stop complaining and start helping.

I’ll end with a Bible verse that is universal in application. James 1:27. Perfect faith is this, that we meet widows and orphans in their affliction. We aren’t. WE are failing these kids. Time to step up and be part of the solution.

One final ask. Every time I present to churches and civic clubs people step up. If you are part of a church or philanthropic civic organization, please put them in touch with me so I can tell your friends and neighbors what they can do to help.