Hard Time
for Hard Cases
_______________________________________
Perspectives on Criminal
Prosecution of Non-Support
CSDA Annual Conference
October, 2009
Hard Time for Hard Cases
Presenters:
Phil Lowe, Esq.
Director, San Luis Obispo County
Department of Child Support Services
Honorable Kristin H. Ruth,
Judge of the District Court
Wake County, North Carolina
Honorable Lawrence Brown
Acting United States Attorney
Eastern District of California
Criminal Prosecution of Non-Support:
Working with the District Attorney
Presenter:
Phil Lowe, Esq.
Director, Child Support Services
San Luis Obispo County, CA
plowe@co.slo.ca.us
CSDA Annual Conference
October 2009
Criminal Enforcement Unit
• In San Luis Obispo County, criminal
prosecution of non-support involves a
cooperative working relationship with
the office of the District Attorney
• The Criminal Enforcement Unit consists
of a half-time Deputy D.A., a full-time
D.A. Investigator, two DCSS
Caseworkers and a DCSS Legal Clerk
• SLO DCSS caseworkers identify cases
for referral to the CEU
Cases Targeted by DCSS for
CEU Referral
• Cases with a current support order
• And no employer
• And no payment for 60 days
• Thorough review based on checklist (see
next slides)
Checklist for Referral
• Child lives in county, or SLO County is
responding interstate
• Judgment/Change of Payee was personally
served and POS in file
• Delinquency letter has been sent to NCP
• SLMS revocation done
• Review of MEDS, DSS, UIB, WKC, DIS,
LS30, Accurint and CSE Locate
• NCP is not receiving SSI (or other SSA
benefits), UIB, DIS, and is not incarcerated
or aided
Checklist for Referral (continued)
• NCP has been contacted (or reasonable
attempts) to discuss case with results
documented in CSE
• CP has been contacted to discern NCP
status and verify no direct payments.
• Liens recorded and entered in CSE
• Screen Print of all cases with referral of all
cases together
• When checklist is complete, referral is
made by filing and serving Seek Work OSC
together with JDX if NCP resides within
150 miles
CEU: Criminal vs. Civil
Charges/Filing Standards
CRIMINAL PC 270
CIVIL CONTEMPT
• Jail 1 year
• Proof BRD-Jury
1.Paternity
2.Willful failure to provide
clothing, food, shelter,
medical attention
• Warrant or Letter; no
personal service
• Warrant in system
• On criminal record
• Filing to sentence: 3
months
• Jail 5 days per count
• Proof BRD-Judge
1.Valid order
2.Service of order
3.Willful failure to pay
4.Ability to pay
• Personal service required
for contempt and pv
• Warrant not in system
• Not a criminal conviction
• Filing to Sentence: 7
months to 1 year
Issues Encountered by DCSS
and DA: Who Does What?
• Ongoing meetings to discuss issues
regarding monitoring of cases, adding
activity log notes, follow-up with tasks and
taking the next step.
• Monitoring Seek Work probation cases is
done by the FSO managing the case.
• Monitoring PC270 probation cases is done
by the DA Investigator.
• Back up for all monitoring is done by the
FSO to ensure nothing falls through the
cracks. (This is done by monthly review of cases
in conjunction with the case assignment and
delinquency reports.)
Recommendations/Things
to Consider
• Consider the cost factor
• Consider the working relationship with
your DA
• Communication is critical to ensure the
divisions within the departments
understand their roles and responsibilities
• Be flexible, listen to what staff have to say,
and be willing to change business
processes based on what works
Recommendations/Things
to Consider (continued)
• Criminal Prosecution is an excellent public
relations tool, because it provides a recourse
for the most willful offenders
• It is an important performance tool, because it
transforms a zero paying caseload to a
caseload that pays at about the rate of 30%,
with CEU “graduates” paying about 60%
Working with the DA
Questions??
Phil Lowe, Director
(805) 781-5741
Child Support Enforcement & ProblemSolving Courts: Finding Integrated Solutions
Presenter:
Hon. Kristin H. Ruth
Judge, District Court
Wake County, N. Carolina
Kristin.h.ruth@nccourts.org
CSDA Annual Conference
October 2009
Child Support: Scope of Need
• 28% of all children under 18 live in
single parent homes
• 85% live with mother
• Only 50% receive child support
payments
• Only 25% get full amount of payment
I-Fen, L. (2000) Perceived fairness and compliance with child support
obligations. Journal of Marriage and Family, 62(2) 388-398.
Problem-solving Court(s) as a Solution?
• Problem-solving courts: dockets that bring together community
resources to address a specific problem
• 2004: the Conference of Chief Justices and Conference of State
Court Administrators passed Resolution 22 which supports the
use of problem-solving court principles and methods in all courts
• Partnerships between courts, public agencies and communitybased organizations facilitate the delivery of services
Ashton, J. (2006) Child support dockets benefit from uprising problem-solving court principle. Juvenile and Family
Justice Today, 14 (4), 19-21.
Wake County Model
The Goals
Integrated Solutions
Increased Child Support Payments
Reduced Jail Overcrowding
Jail-Avoidance savings
Wake County Model
The Cycle
Integrated Solutions
•
•
•
•
•
•
•
Parent is ordered to pay child support
Parent doesn’t pay
Parent is issued a show cause
Parent is served and comes to court
Parent is found in contempt
Parent is ordered to pay a purge or go to jail
Parent pays the purge and parent is
released
• Cycle repeats itself over again
Ruth, K. (2006) Breaking the cycle: Alternatives to incarceration lead to collections in Wake Co.,
North Carolina. Child Support Report, 38 (1) 2.
Wake County Model
Integrated Solutions
Breaking The Cycle
Judge-Driven Hearings
and
Service Integration
Electronic
Monitoring
Vocational/
Counseling
Services
Custody
Visitation/
Mediation
The Process
Accountability + Opportunity +
Judge
=
Success
Electronic
Vocational/
Status
Increased
Monitoring
Counseling
Hearings
Compliance
With
With
With
> Payments
Field
Visitation
Performance
< Jail Days
Supervision
Mediation
Reports
< Failures
Wake County Model
Integrated Solutions
Procedure(s)
Show Cause
Finding
Conditions
of
of
Regular
Willful
Judges
Reviews
Contempt
Order
If participant violates conditions, arrest
warrant may be issued
Typical Conditions: Used Alone or in
Combination Depending on
the Specifics of Each Case
• Electronic Monitoring: To Establish Daily
Curfew
•
“Working for Kids” Program
• Seek/Secure Employment
• Attend Substance Abuse Classes
• Address Mental Health Issues
• Address Education Needs
Wake County Model
Integrated Solutions
Local Impact: Contributes to Overall CSE Collections
Wake CSE Collections - 10 Year Annual Trendline
40,000,000
35,000,000
30,000,000
25,000,000
20,000,000
15,000,000
6,
$1
5
,65
3
03
1
,29
3
1
5
58
4,5
8,
1
57
,
$
6
$1
95
4,1
5
2
6
,5
9
1,9 $28
8
5
3
,0
5
4,
26
13
4
,79
$
,
0
2
4
23
$2
9,4
2,
46
2
,
$
0
$2
7
,07
8
0
58 35, 3
7
,
$
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28
2,
3
$
10,000,000
5,000,000
0
96
-9
97
7
-9
98
8
-9
99
9
-0
0
20
00
-01
20
01
-02
20
02
-03
20
03
-04
20
04
-05
20
05
-06
Wake County Model
Integrated Solutions
Local Impact – Jail Avoidance Savings
Wake Electronic Monitoring
Service Days and Savings by Fiscal Year
FY-06
FY-07
In FY 2007: 29,500 Days… which = $2,006,000 in Jail Avoidance Savings
3,000
2,650
2,500
2,390
2,250
2,408
2,509
2,451
2,660
2,520
2,272
2,610
2,540
2,240
2,000
1,500
1,000
500
0
JUL
AUG
SEP
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
Academic Research
Meredith College
Phase I study named “Child
Support Sanctions and
Effects on Non-custodial
Parent Compliance”
Designed and led
by Dr. Rhonda Zingraff,
Professor of Sociology
at Meredith College
Abstract
• The sanctions this research focuses on are the use
of Electronic House Arrest (EHA) and Working For
Kids (WFK) programs in increasing child support
payment compliance.
• The analysis of compliance focuses on payment
histories of non-custodial parents placed in the
programs six months prior and six months after the
sanction was implemented.
• The data is examined to see if the child support
payment compliance sanctions have a significant
effect on compliance of non-custodial parents vs.
the traditional use of jail incarceration as the primary
or sole sanction.
Significance of change in payment
compliance before and after EM/EHA
EHA Summary Data
70
60
Compliancece
50
40
30
20
10
0
6th
5th
4th
3rd
2nd
1st
On EHA
1st
2nd
3rd
Months Pre- and Post-EHA
Any Pay
Over 50%
1
100%
Above 100%
4th
5th
6th
Significance of change in payment
compliance before and after WFK
Working for Kids Summary Data
60
Compliance ce
50
40
30
20
10
0
6th
5th
4th
3rd
2nd
1st
Begin
WFK
1st
2nd
3rd
Months Pre- and Post-WFK
Any Pay
Over 50%
100
1 %
Above 100%
4th
5th
6th
Significance of change in payment
compliance before and after JAIL
Jail Incarceration Summary Data
60
Compliancece
50
40
30
20
10
0
6th
5th
4th
3rd
2nd
1st
Enter
Jail
1st
2nd
3rd
Months Pre- and Post-Jail Time
Any Pay
Over 50%
100%
1
Above 100%
4th
5th
6th
Comparison of change in payment
compliance by Sanction
Sanction Comparisons
9
8
ComplianceM
7
6
5
4
3
2
1
0
Pre-EHA
Pre-WFK
Pre-Jail
Post-EHA
Problem Solving Sanctions
Consistency
Payment Level
Post-WFK
Post-Jail
Conclusions
• Strong implications that the EHA and WFK
sanctions do impact payment compliance and
performance.
• Evidence that both sanctions increase child
support compliance in terms of frequency of
payment and levels of payment.
• Evidence of increased employment
particularly after EHA sanction.
• Evidence that EHA compares favorably to Jail
and WFK as effective sanction.
PRELIMINARY RESEARCH
Drug Treatment Enhancement to EHA
within the Wake County Model
• This program enhancement seeks to improve
CSE collections by providing assessment and
specialized drug treatment/testing services to
targeted addicted and abusing non-payors of
child support on EHA.
• The measurements of success are increased
sobriety, employment and compliance with
court-ordered child support payments.
Employment Compliance before and
after EM/EHA with Drug Treatment
Monthly Employment for Long-Term Participants
(defined as 45+ days in program)
20
18
16
14
12
10
8
6
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No
Unable to Measure
Payment % Compliance before and
after EM/EHA with Drug Treatment
Monthly Payment Percentage for Long-Term Participants
(defined as 45+ days in program)
20
18
16
14
12
10
8
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>0%, <50%
≥50%, <100%
≥100%
Unable to Measure
Questions??
Judge Kristin Ruth
919.835.3224
Kristin.h.ruth@nccourts.org
Federal Child Support Enforcement
Lawrence G. Brown
UNITED STATES ATTORNEY
Eastern District of California
What’s in a name…
• 1992-98: the Child Support Recovery Act;
• post-1998…
THE DEADBEAT PARENTS
PUNISHMENT ACT
Willful Failure
to Pay Child Support
18 U.S.C. 228 (a)(1)
• 6-month Misdemeanor if willfully fails to
pay support obligation with respect to a
child who resides in another state, if such
obligation:
-has remained unpaid for a period
longer than one year; or
-is greater than $5,000.
• 2-year Felony if second or subsequent
offense
18 U.S.C. 228 (a)(3)
• Felony if willfully fails to pay support
obligation w/ respect to child who resides
in another State, if such obligation:
-remained unpaid >2 years; or
-is greater than $10,000.
• Maximum punishment is 2 years prison.
• Must serve 85% of time.
Interstate or Foreign Flight
to Evade Child Support
18 U.S.C. 228 (a)(2)
• Felony if travels interstate or in foreign
commerce with the intent to evade a
support obligation, if such obligation has:
-remained unpaid for > one year; or
-is greater than $5,000
• Maximum punishment is 2 years prison.
• Must serve 85% of time.
• “Support obligation” means amount
determined under a court order or an
order of an administrative process
pursuant to the law of a State or of an
Indian tribe…
Venue
• Action may be prosecuted in a district
court of the United States where:
• Child lived during which obligor failed to
meet support obligation; or
• Where obligor lived during which
willfully failed to meet support obligation
pursuant to (a)(1).
Case Referral/Prosecution
• Project Save Our Children (PSOC)
• State IV-D agency refers cases for federal
consideration to the PSOC Office.
• PSOC is HHS agent/contractor.
• Once referred, USAO meets w/ IV-D to
discuss case.
• Document Referral Package submitted
by PSOC.
• After info received, paralegal consults
with AUSA to determine whether to
consider for further investigation or
prosecution.
• If accept case, request to OIG-HHS to
assign an agent, open grand jury
investigation, and seek tax return
information by court order.
• Request that no state criminal action be
initiated after referral to USAO. If
brought, USDOJ requires dismissal
absent extraordinary circumstances.
• Cases to be referred only if:
1. Open, active enforcement case;
2. Evidence in support of each element
statute(s)
3. Some factors in USAO Prosecution
Guidelines satisfied
Requirements
• Venue- district where child resided
during time of violation or where obligor
resided while trying to evade.
• Valid Support Order-current, valid order
mandating payment by non-custodial
parent.
• Knowledge-of obligation to pay support.
• Ability to Pay-must have evidence.
• Willfulness-mere failure to pay not
enough.
• Arrears of $5,000 per child or support
unpaid longer than one year.
• Interstate nexus-non-custodial parent
must either reside in a different state
than child or travel interstate to avoid
payment
Prosecution Guidelines
• U.S. Attorneys set guidelines for their
districts.
• CA has four districts with four USAOs.
Sacramento
San Francisco
Los Angeles
San Diego
Eastern District of CA Guidelines
• Priority given to cases in which majority
of following factors are present:
• CP and child reside in EDCA.
• State agency has open case and has
pursued/exhausted all reasonably
available civil state remedies.
• NCP moves repeatedly or moves after
service for contempt or after contempt
hearing.
• Pattern of deception to avoid payment,
e.g. repeated changes in employment,
multiple ss#’s, concealment of assets
• Failure to pay support after contempt
order issued.
• NCP has substantial, regular, and
documented income and/or assets.
• Nexus to other federal offenses, e.g.
bankruptcy fraud, bank fraud, mail
fraud, federal income tax evasion.
• No evidence of legitimate bankruptcy
filing
• Children w/ disabilities or special needs.
• Address, employment, annual income of
NCP are known
• Underlying order issued from CA
Superior Court and necessary legal
documents are readily accessible.
• Arrearages significantly exceed $5,000
statutory threshold.