A nonprofit publication of the Kentucky Center for Public Service Journalism

Sixth Circuit Court of Appeals denies state’s petition for ‘en banc’ rehearing of Schulkers lawsuit


By Judy Clabes
NKyTribune editor

The Sixth Circuit Court of Appeals has denied a petition for an ‘en banc’ rehearing of the case of Holly and David Schulkers’ lawsuit against the Cabinet for Health and Family Services and three of its social workers.

A three-judge panel of the Sixth Circuit ruled on March 30 unanimously in favor of the Schulkers of Fort Thomas on all points in their lawsuit. Subsequently the Cabinet’s counsel, David Brent Irvin petitioned the court for a rehearing ‘en banc’ but the court has now refused the rehearing.

Holly and David Schulkers

“The court received a petition for rehearing en banc,” the court said in an order signed by Deborah S. Hunt, clerk. “The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc. Therefore, the petition is denied.”

Judge Amul Thapar recused himself from participation in the ruling.

The Cabinet’s only remaining alternative is an appeal to the Supreme Court. Otherwise, the case will go to trial before a jury.

The Schulkers filed a suit against three social workers with the Cabinet for the handling of their case in the wake of a hospital drug screen for opiates when Holly Schulkers was having a baby. The Schulkers were threatened within their hospital room with immediate removal of their children to foster care if they did not sign the Cabinet’s “Prevention Plan” for supervised visitation. The Cabinet’s “Prevention Plan” presented to the Schulkers included a stamp that stated, “absent preventive measures there is a planned arrangement for foster care for this child.” There was never such an arrangement for foster care and the Cabinet learned within hours that Holly’s test was a false positive.

Despite the fact that the Cabinet learned indisputably that Holly’s test was a false positive, by the results of a subsequent umbilical cord test and a confirming urine test, the Cabinet interviewed the Schulkers children at school without the parents’ knowledge, had their dismissal from the hospital with their newborn delayed, and were under “protective” orders at home that Holly could not be alone with any of the children — for weeks after the Cabinet knew the drug test was wrong.

The Schulker’s attorney Paul Hill continues to say the Schulkers just want the case to move to a jury.

“We will keep the case moving forward until we are able to present the case to a jury and hold the Cabinet accountable for their actions,” Hill said.

See the NKyTribune’s full story about the suit here.


Related Posts

One Comment

  1. Lynn says:

    Stop the unlawful separation of children from their families.

Leave a Comment