A new permanency option for children who are not in permanent placements was created in July, 2007 when the Washington legislature passed ESHB 1624, the Parental Reinstatement Bill, now codified at RCW 13.34.215. Approximately 10 other states now have similar legislation.
Prior to the passage of the parental reinstatement legislation, it was not uncommon for an adolescent to request a return to the parental home even if parental rights had been terminated. Until 2007 there was not an appropriate statutory basis to allow placement. The child could request that his or her attorney (if the child had an attorney) set a motion hearing in the dependency case to request placement with a (terminated) parent. The court might have considered placement with the terminated parent if the placement was determined to be with a “suitable person” or a “relative.” In family court, a terminated parent could petition for a “non-parental” custody action , but the dependency court has exclusive jurisdiction over the child, which made it difficult for the parent to bring a custody action in family court unless there was concurrent jurisdiction between both courts. Neither of these options made the parent’s rights very clear and neither gave the parent the legal ability to be heard in juvenile court where dependency cases are heard. The new statute has provided terminated parents with the option of resuming their status as the legal parent.
§ 23.2 Eligibility
As of 2007, RCW 13.34.215 allows a youth who is over the age of 12 to petition the court to reinstate the parent’s previously terminated rights if the child is not in a permanent placement and at least three years have passed since the termination of rights. 2
Legislation in 2008 allowed the court on its own motion to petition for reinstatement as well as for a child under the age of twelve (12) to petition if it is in the child’s best interest.
In 2011, the law was amended to clarify that if a child had been in a permanent home, but the placement had not been sustained, the child was eligible to petition for reinstatement if the other requirements were met. (RCW 13.34.215 (1)(c)(ii).
§ 23.3 Notification to Child
If a parent of an eligible child contacts the Department of Social and Health Services (DSHS) regarding reinstatement of parental rights, the supervising agency, the child’s guardian ad litem (GAL) or court-appointed special advocate (CASA) , is required to notify the child of the right to petition for reinstatement.3
§ 23.4 Representation of Child
Prior to the enactment of RCW 13.34.100 (6)(a) Washington’s laws regarding appointment of counsel for children made the child’s ability to advocate for return to a terminated parent difficult in most counties in Washington because children were not routinely appointed counsel in dependency cases. With the change in the appointment of counsel law for legally free children, children of any age are now appointed counsel once the parents’ rights have been terminated for six months and the child is not in a permanent home, and therefore will have access to counsel long before becoming eligible to petition.
RCW 13.34.215, , additionally provides for appointment of counsel for any child who petitions the court for reinstatement of parental rights.4 This was Washington’s first uniform law and practice for appointment of an attorney for a child in a dependency proceeding. The statute also allows appointment of a GAL in the reinstatement proceeding.
§ 23.5 Threshold Hearings
Once the child files a petition to reinstate parental rights, a threshold hearing is set 5to consider the parent’s fitness and interest in reinstatement of parental rights. At that hearing, the child must show by a preponderance of the evidence that the best interests of the child may be served by reinstatement of parental rights.6
§ 23.6 Hearing on the Merits of the Petition
After the threshold hearing and if the Court has determined that the child has met his/her burden of proof on the threshold requirements, a hearing on the merits of the petition is scheduled. .7 At that hearing, the petitioning child must show by clear and convincing evidence that he or she (the child) has not achieved a permanent plan which has been sustained, and is not likely to achieve such a plan, and that reinstatement is in his or her best interest.8 For children who have experienced many placements and continue to reside in temporary homes, it is fairly easy to establish the lack of a permanent plan and that the rehabilitated parent may be the only option for the child to have a permanent home. Likewise, if the birth parent is the only permanent option, the parent has stabilized and the relationship is a positive one, establishing “best interest” may be fairly straight forward.
§ 23.7 Notification to Interested Parties
Prior to any hearing, the DSHS or other supervising agency must give notice to all interested parties including the parent whose parental rights are at issue, any parent whose rights have not been terminated, the child’s current foster parent, relative caregiver, guardian/custodian, and the child’s tribe (if applicable).9
§ 23.8 Burden of Proof
At the threshold hearing, the court must order a hearing on the merits of the petition if it finds by a preponderance of the evidence that reinstatement is in the best interests of the child.10
At the merits hearing, the court must conditionally grant the child’s petition if it finds by clear and convincing evidence that the child has not achieved his or her permanency plan and that reinstatement is in the best interest of the child.11
§ 23.9 Considerations of the Court
Generally, the children who petition for reinstatement of parental rights have maintained a relationship or contact with the parent. In some cases, the child has been living with the parent, either unofficially, or with court permission on a “visit” or other type of temporary placement. The child’s counsel is required to show that the parent(s) has dealt with the issues that caused the court to terminate rights—that the parent is currently able to care for the child. The court must consider whether the parent has remedied his or her deficiencies, the age/maturity of the child, whether reinstatement would risk the child’s health, safety or welfare and any other material changes of circumstance which would lead to the reinstatement process.12
§ 23.10 Prior Efforts to Achieve Permanency
DSHS or another supervising agency must provide the court with all information relating to efforts to achieve permanency so that the court may determine whether or not permanency was achieved.13
§ 23.11 Timing
Washington’s law allows the child to transition home at the time the parent’s rights are conditionally reinstated, generally 90 days from the date of the filing of the petition, if all of the requirements are met. Complications arise in cases where the birth parent resides out of state, and the interstate compact process is invoked. A receiving state may not recognize a terminated parent as having the authority for placement and may refuse to conduct a home study. The child may have treatment issues that would not allow placement as early as 90 days from the date of petition (such as in the case of a child in group care or in a treatment facility.) Using the family group conference or other family support meeting process is an important resource for these types of cases.
§ 23.12 Cause for Dismissal of Petition for Reinstatement
Once the child is placed in the parent’s home, and the parent’s rights have been conditionally reinstated, a hearing is set for six months later.14 If the child is removed from the parent due to abuse or neglect during this period of time, where the allegations are proven by a preponderance of the evidence, the court will dismiss the petition for reinstatement of parental rights.15
§ 23.13 Cause for Dismissal of Dependency
If the placement was successful for the six month trial period (i.e., the period during which the parent’s rights have been conditionally reinstated), the dependency will be dismissed and the parental rights will be permanently reinstated. This reinstatement of parental rights includes powers, privileges, immunities, duties and obligations of a parent to the child.16
§ 23.14 Effect on Prior Termination Order
Reinstatement of parental rights does not alter the prior termination of parental rights.17 The reinstatement of parental rights is a new, more recent court order which is legally enforceable.
§ 23.15 Child Support Obligations
A parent whose parental rights are reinstated is given all of the powers and obligations associated with parenthood, however child support is not owed retroactively from the time the parental rights are terminated until they are reinstated.18
§ 23.16 Applicability
RCW 13.34.215 applies to all children under the jurisdiction of the juvenile court regardless of the date parental rights were initially terminated.19 Parental reinstatement, although new to Washington State, is a promising permanency option for Washington’s foster youth who are destined to age out of the foster care system. This plan allows children, especially older children, the chance to return to their birth families, return to a culturally appropriate home, and allows the return to a home that may be the only stable, permanent, and appropriate resource available.
Jana Heyd is the former assistant director at Society of Counsel, one of the public defense agencies in Seattle, Washington, where she worked for 24 years. Jana has been involved primarily in the dependency practice area, working with children and families in the foster care system. Jana is currently employed at the Washington State Office of Public Defense as one of the managing attorneys in the Parent Representation Program. She is the former co-chair of the state’s Children’s Justice Task Force and participated in the Immigrant Child Advocacy Project, the Family Treatment Court advisory board, and the Child Youth and Family Advisory Council for the state of Washington. Jana was a e co-chair of the juvenile law section of the Washington State Bar Association.
If DFPS seeks to formally remove your child, seek legal
advice.
If DFPS seeks to legally remove a child, they must file
a petition
called a Suit Affecting the Parent
Child Relationship, an affidavit
containing the allegations that necessitate the request for a removal, and
request that a court
name DFPS Temporary Managing Conservator
of the child.
Be aware that the caseworker will use information
gathered during the investigation and FBSS phases when preparing the affidavit.
If DFPS requests a removal, they may ask a parent
to voluntarily allow DFPS to obtain temporary custody of their
child.
A parent
is not obligated to agree with the removal of their child and may want to
consult an attorney before making this decision.
DFPS can remove a child without a court
order in some emergency circumstances. If DFPS removes a
child from a parent or legal guardian
without a court order, DFPS must file a SAPCR, request that the court
appoint an attorney ad
litem for the child, and request an initial hearing no later than the
next business day after the emergency removal.DFPS may have the hearing
without the parents present, which is called an ex
parte hearing.
2.
Removal with a court
order:
DFPS can request that a court
sign an order to remove a child
from the parents in an ex
parte hearing without the parents present. If DFPS obtains an order
authorizing the emergency removal of a child, DFPS may remove the child from the
parents after obtaining the order.
If DFPS does not believe that a child is in immediate
danger, they may request Temporary Managing Conservatorship
of a child after filing a petition
and providing notice
of a hearing to the parents. When DFPS requests a non-emergency
removal, the parents are entitled to notice of the hearing and may attend the
hearing to provide the court with their position regarding DFPS’s
request.
If a parent does not agree with either a court ordering
emergency temporary managing conservatorship
of their child to DFPS or with DFPS’s request for temporary managing
conservatorship in a non-emergency hearing, the parent may contest
the emergency removal or request for removal and ask that a full hearing with
evidence be conducted where DFPS must be able to show they can meet their legal
burden to seek the removal of the child. If a court does not find that DFPS has
met their legal burden to be named Temporary Managing Conservatorship of a
child, the child should be returned to a parent. If a court does find that DFPS
has met their legal burden to be named Temporary Managing Conservatorship of a
child, then a temporary order
will be issued naming DFPS as the Temporary Managing Conservator
of the Child and the case
will proceed with the conservatorship unit of DFPS.
Within 14 days from the date of an emergency removal, a
hearing should be set so the Court can decide whether or not DFPS should
continue as Temporary Managing Conservator
of a child.
If the court will not be hearing evidence at this time,
you may request a full evidentiary hearing set on a later date where DFPS must
show they can meet the legal burden to remove a child from a parent. If a
parent requests a full evidentiary hearing, a parent may provide their own
evidence to support their position against removal and may be required to
testify. Any parent contesting a removal of their children should seek the legal
advice of an attorney before deciding to move forward with a full evidentiary
hearing.
If a court-appointed attorney has not yet been
appointed for a parent before the 14-day hearing, a parent may also ask whether
the court will appoint an attorney to represent the parent. If a parent has not
yet hired or been appointed an attorney before the 14 Day Adversary
hearing is held a parent may request a continuance
or extension of the hearing of not more than seven days in order to seek legal
representation (Texas Family Code chapter
262.201(a-5)).
To meet their legal burden to be named
Temporary Managing Conservator
of a child when DFPS has removed a child in an emergency situation, Texas Family Code Section 262.201(g) requires that
DFPS must be able to show that a person of “ordinary prudence and caution”
could reasonably make the following findings:
i)There
was a danger to the physical health or safety of the child caused by an act or
failure to act on the part of the parent
or the person entitled to possession of the child, and that for the child to
remain in the home is contrary to the welfare of the child;
ii)The
urgent need for protection required immediate removal and that reasonable
efforts consistent with the circumstances and with providing for the safety of
the child were made to eliminate or prevent removal; and
iii)Despite
reasonable efforts to eliminate the need for removal, there is a substantial
risk of continuing danger to the child if the child is returned to the
home.
An attorney representing DFPS will likely provide
evidence to support DFPS’s request for Temporary Managing Conservatorship
of a child in the form of documents, video and audio recordings (if available),
and witnesstestimony.
A parent’s attorney may also put on evidence as to why the court should not
grant DFPS temporary custody of a parent’s child. The attorney ad
litem appointed to represent a child will also participate in the hearing
and will likely question witnesses and may present their own evidence. Parents
may be required to testify in these hearings and are often questioned by all
attorneys in the case.
Any parent considering seeking a contested
evidentiary hearing should talk to a lawyer before testifying.
2. Contesting
a Non-Emergency Removal
If DFPS has not removed a child from a parent in an
emergency situation, but is seeking that the court name DFPS Temporary Managing
Conservator of a child, the initial hearing must be set within 30 days of DFPS
filing their legal petition
to start the case
(see Texas Family Code chapter 262.201(b)). If a parent
does not agree with DFPS being named Temporary Managing Conservator of a child,
the parent may still contest
the request of DFPS and ask that the court conduct a full hearing with
evidence.
a) Burden of Proof
To meet their legal burden to be named
Temporary Managing Conservator
of a child in a non-emergency situation, Texas Family Code Section 262.201(j) requires that
DFPS must be able to show that a person of “ordinary prudence and caution”
could reasonably make the following findings:
there is a
continuing danger to the physical health or safety of the child caused by an
act or failure to act of the person entitled to possession of the child and
continuation of the child in the home would be contrary to the child's welfare;
and
reasonable efforts,
consistent with the circumstances and providing for the safety of the child,
were made to prevent or eliminate the need for the removal of the
child.
b) Evidence
Evidence in a contested
non-emergency Temporary Managing Conservatorship request is similar to the
evidence that would be presented in a contested emergency
removal.
In August 2009, Mindi, a 25-year-old struggling new
parent, experienced what doctors later concluded was a psychotic episode. She
had been staying in a cousin's spare basement room in De Soto, Kansas, while
trying get on her feet after an unexpected pregnancy and an abusive
relationship. She'd been depressed since her daughter was born and was becoming
increasingly distrustful of her relatives.
Isolated, broke and scared, one Saturday morning, she
cracked. She woke to change her 5-month-old daughter's diaper. When Mindi
looked down, she believed the baby's genitals had been torn.
Mindi's mind raced for an explanation. The one she came
to? That her baby had been raped the night before; that someone—she did not
know who—had put sedatives in the air vents.
Mindi called her pediatrician's office. A receptionist
told her to take her daughter to a children's hospital in nearby in Kansas
City, Missouri. Doctors there found no evidence that the girl had been harmed
or that any of what Mindi claimed had actually happened.
After Mindi started arguing, medical staff sent her for
a psychological evaluation and notified local child welfare authorities,
according to court records. (As is typical in child welfare cases, the court
documents do not include the full names of anybody in the family. Mindi has
asked ProPublica to use only her first name, as did other parents in the
story.)
In 2009, Mindi had a psychotic episode—she believed her
five-month-old daughter had been raped. But doctors found no evidence this was
true, and called authorities to take custody of the girl. (Steve Herbert for
ProPublica)
That night, authorities took emergency custody of
Mindi's daughter, who is referred to in court documents by her initials, Q.A.H.
A court-appointed doctor later concluded that Mindi had experienced postpartum
psychosis.
But Mindi rebounded after the episode. She began to
attend therapy and to see a psychiatrist, who prescribed an antidepressant. She
found a job as a shift manager at Kmart and moved into her own apartment. Each
morning, she'd call the foster home where her daughter had been placed and
she'd read Q.A.H. a book.
In time, her psychiatrist, therapist and even a panel
of judges concluded that Mindi should get her daughter back.
"I found the help I needed to be healthy," says Mindi,
a wide-eyed woman with a round face and a chatty affect. "I was dealing with
some mental battles at the time."
Dr. Stanley Golan, the psychiatrist who treated Mindi,
diagnosed her with a mix of post-traumatic stress disorder—likely, a therapist
later said, related to abuse—depression and possibly a kind of "mild
delusional disorder." Still, the diagnoses, Golan said in court testimony, "do
not interfere with her parenting and she is able to adequately care for
Q.A.H."
"You can have these diagnoses and be symptom-free," he
testified.
Indeed, in September 2011, Mindi, who was in another
relationship, gave birth again, to a boy named Jace, whom she's now raising
capably on her own. Citing Mindi's pending case over Q.A.H., Kansas authorities
took Jace at birth and placed him in foster care. But they soon returned him
after finding no evidence that Mindi posed any risk to her son. As a family
therapist testified, Mindi has provided a "nurturing, loving environment and
had met all of [Jace's] needs."
Yet four years later, after a protracted series of
court fights, Mindi does not have her daughter back.
"I couldn't see how they could keep one while I had the
other," said Mindi, sitting on the carpet in a living room with her son,
surrounded by toy trains and a pile of books. "I don't think I should have to
fight for my own child to come home." (Missouri and county child welfare
officials declined to discuss the case.)
The question in Mindi's case is not about what
authorities did when she plunged into a mental health crisis—nearly everyone
involved in the case, including Mindi's own attorneys, agrees it was likely
appropriate to remove her baby that day. Instead, the issue is whether a mental
health diagnosis itself, in the absence of any harm, should be enough to keep
Mindi from ever getting her daughter back.
Mindi received treatment for her mental illness—she was
diagnosed with depression, anxiety and a mild delusional disorder—and has since
rebounded. (Steve Herbert for ProPublica)
Under a concept sometimes called "predictive neglect,"
Missouri and about 30 other states allow courts to terminate a parent's
connection to a child if authorities conclude a mother or father has a mental
illness that renders them incapable of safely raising the child. Officials
usually must present evidence that the illness poses a threat. Most cases
involve significant mental illness, not run-of-the-mill depression or anxiety.
Yet there need be no evidence of actual harm or neglect, just a conclusion that
there is a risk of it.
States typically do not track how many parental
termination cases are related to mental illness, or how often parents have lost
children based on a diagnosis. New York, one of the few states that does tally
such cases, has about 200 parental terminations annually based on mental
disability, a category that includes both mental illness and "mental
retardation." If there were a similar rate nationally, that would amount to
several thousand cases per year. The cases are typically sealed, and there's no
way to know how many involve court overreach.
But if it's impossible to know how many parents lose
children unnecessarily because of the stigma of mental illness, it's clear that
the process for deciding such cases is deeply flawed.
Courts' decisions rest on the recommendations of
evaluators who often do not observe parents at home or examine their actual
record of parenting. Instead, they rely on psychological tests and case
notes.
Incomplete evaluations are an "endemic problem," said
Joanne Nicholson, who directed a unit that conducted parenting assessments for
Massachusetts child welfare agencies and is one the country's leading
researchers on parents with mental illness.
"Parents are often evaluated without a real analysis of
their supports, of the life they actually live," said Nicholson, currently a
psychiatry professor at Dartmouth College. As a result, "the diagnosis starts
to speak louder than real life."
Children can also pay a price when courts overstep.
Research shows
that forcing children in and out of different homes can leave lasting emotional
scars.
The logic of removing kids from parents with serious
mental illness is straightforward. Studies have shown that serious mental
illness correlates with higher rates of child neglect and abuse. Parents who
can't take care of themselves aren't going to be in a position to take care of
a child. And delusional thinking can lead to irrational, dangerous
behavior.
"You have to put protection first," said Mary Kay
O'Malley, who worked for years as a foster care caseworker, is now a professor
at the University of Missouri Law School and has dealt with many cases like
Mindi's.
Mindi's daughter was taken by authorities after Mindi
had a mental health crisis. Mindi has never been able to get her daughter back,
even though she's now capably raising a son.
When officials fail to intervene to protect children
from mentally ill parents, the results can be tragic, irrevocable and
front-page news. In one notorious 2008 case, a Long Island, New York, mother
drowned her three children after county officials failed to respond to repeated
warnings from relatives that she was dangerously unstable.
But O'Malley says she's seen agencies and courts
unnecessarily cut off parents from their children. She says that's what
happened to Mindi.
Six months after Mindi brought her daughter to the
hospital, in February 2010, a parenting counselor reported that Mindi "is ready
to be there for [Q.A.H.] emotionally, mentally, and [she] can support
Q.A.H."
"The parent changed in this case," said O'Malley, who
consulted for Mindi's attorneys for free after learning about the case. "But
the court didn't."
The laws permitting termination of parental rights were
mostly written in an era when serious mental illness was assumed to disqualify
patients from participation in normal life, including parenting. Parents like
Mindi may have been institutionalized. In many states, the mentally ill or
intellectually disabled could be sterilized. The phrasing in the law has often
changed—states have removed words like "feebleminded" and "depravity"—but the
same concepts echo.
Indeed, a 2012 presidential
commission report found that "parents with psychiatric disabilities
experience the most significant discrimination when they attempt to exercise
their fundamental right to create and maintain families."
"When [mentally disabled] people were
institutionalized, they could not keep their kids. Now they're living on their
own, and they're not allowed to keep their kids," said Patrick Yewell, who
recently retired from a career as a foster care caseworker, supervisor and
administrator in Kentucky's child welfare system.
Rudy, a 42-year-old West Indian-born man in the Bronx,
New York, was also denied custody of his daughter. His chance to raise her now
rests largely on a psychologist's evaluation consisting of two visits and a
review of Rudy's records.
Rudy has long struggled with chronic bipolar disorder,
for which he has been repeatedly hospitalized. Rudy is also intellectually
delayed—an IQ test placed him at the borderline of intellectual
disability.
He has no history of violence, abuse or neglect. His
only child, J, who is now 3, was removed from the hospital immediately after
she was born and placed in foster care. Rudy has been asking to be allowed to
raise his daughter with help from his mother and sister.
Authorities first took J because of significant
concerns about her mother. J's mother, from whom Rudy had separated before J
was born, had already lost three other children to foster care. One of the
children removed from J's mother and placed in foster care later died at the
hands of a relative of J's mother. And like Rudy, J's mother suffers from
mental illness and intellectual delays.
On June 28, 2010, Rudy watched as two Nassau County
caseworkers and a cop walked out of the hospital with 4-day-old J. (ProPublica
confirmed details of the case through court documents and multiple
interviews.)
Rudy, who has closely cut hair and often dresses in
baggy sports jerseys, recalls the day his daughter was taken as the saddest of
his life. "I asked them why they took my daughter, and they didn't respond,"
Rudy remembered in a soft stuttering voice with an accent left over from his
childhood in St. Croix. "I asked them if I could hold her before they took her,
and they wouldn't let me hold her."
Rudy began what would become a weekly ritual: Riding
two trains and a bus every Tuesday from the Bronx to Long Island to spend 75
minutes with J in a room in the county child welfare office. Some caseworkers
were suspicious of Rudy. "The major concern for the family is both parents'
mental health issues," child welfare officials wrote in a court
document.
Others described him as a loving, if inexperienced,
father. One caseworker note from a visit in September 2011 described Rudy as
"gentle and caring," rocking J to sleep on the couch at the county office. Two
weeks later, a different worker wrote that he was "getting more adept at caring
for the child." J's mother, meanwhile, stopped showing up for visits and failed
to appear in court.
But just over a year after J was first placed in foster
care, two Nassau County officials pulled Rudy into a meeting room after a visit
with J and told him that the county planned for J to be adopted by her foster
family, case documents show.
"They said I have a mental illness, they were trying to
see if I would sign away my rights," Rudy said as he sat one recent evening in
his Bronx apartment, a pot of rice steaming on the stove. "They expected it to
go smoothly, they expected me to surrender my rights."
In New York, counties are required to appoint an
attorney for parents at risk of losing their kids, but Rudy hadn't yet been
given one. Unsure of what was happening, Rudy went home and called his sister
Rubeka, in Tampa, Florida.
"He sounded really upset. Not really angry, but more
hurt," said Rubeka, who works as a psychiatric nurse.
Rudy and Rubeka consulted a lawyer and came up with a
plan in which Rudy would move in with his sister and mother in Florida so they
could raise J together. J's mother, who was also facing the termination of her
parental rights, and whose mental health, according to case notes, was
deteriorating, agreed to the plan. (J's mother declined to discuss the case
with ProPublica, except to say she supported Rudy's effort to get
custody.)
But Nassau County officials told Rudy that he should
have laid out the plan months earlier and that because so much time had passed,
federal child welfare law required them to request termination of his parental
rights. The county's records suggest that caseworkers had warned Rudy about
this; Rudy said he did not understand he could lose his rights so rapidly and
that he waited because he believed J's mother was going to regain custody.
Caseworkers also noted that visits between Rudy and J had gotten harder as she
grew older—she would often cry inconsolably; she knew her father only as the
man she saw on Tuesdays and considered her foster parents her real mother and
father.
But these were not the reasons Nassau County
authorities listed when they petitioned a county court to sever Rudy and J's
legal ties. Instead, the county filed to terminate his rights based on his
mental illness. Under New York law, parents can lose their children if courts
decide their mental disabilities render them incapable of parenting for the
"foreseeable future."
The Nassau County Department of Social Services would
not respond to questions from ProPublica about the case or any related policy
issues. The county referred ProPublica to the New York State Office of Children
and Family Services. That office declined to comment as well and referred us
back to Nassau County. The foster parents' attorney and the attorney appointed
to represent J also declined to discuss the specifics of the
case.
In the summer of 2012, a judge sent Rudy to Dr. Joseph
Scroppo, a psychologist and attorney who has held appointments at several New
York universities. Scroppo has a contract with Nassau County to perform
forensic psychological evaluations and make recommendations about whether
parents should keep their children.
Scroppo's evaluation was exhaustive compared with many
in other parental rights cases. He met with Rudy alone for nearly 10 hours.
Then Scroppo watched Rudy interact with J for 30 minutes. He gave Rudy an IQ
test, asked him to define words, stack blocks and read a few sentences. He
reviewed Rudy's mental health records, including his hospitalizations for manic
episodes, and case notes from the child welfare department.
Scroppo concluded that Rudy could not be trusted to
raise his daughter.
Rudy's "score indicates that he is probably capable of
semi-independent living but would experience significant problems if he were
to attempt fully independent living," Scroppo wrote. Citing Rudy's
hospitalizations, Scroppo concluded that Rudy "is now, and for the foreseeable
future, unable to adequately care for the subject child."
During a hearing in May 2013 in Rudy's continuing
parental rights case, Rudy's lawyer, who was appointed to the case when the
county filed for termination, grilled Scroppo on his evaluation.
"Your testimony...suggested that [Rudy] would have
difficulty functioning fully independently; is that correct?" Rudy's lawyer,
Lauren Broderick, asked.
"Yes," Scroppo replied.
"[But] wasn't it your understanding that [Rudy] was
cooking his own meals at the time of your evaluation?" Broderick said, looking
down at her notes.
"I'm not sure whether he was cooking his meals or not,"
Scroppo said.
"Did you inquire?" Broderick asked, looking
up.
"No, I did not," he said.
"Wasn't it true at the time of your evaluation that
[Rudy] was paying his bills?" she went on. "He was responsible for his own
hygiene?"
"As far as I knew, yes," Scroppo said.
Broderick continued to push Scroppo to offer evidence
from Rudy's life. Instead, Scroppo said, "I based the [categorization of]
semi-independent status on the test that I administered to
him."
New York's law allows mothers and fathers to present
alternative evaluations in court, though funding is not always made available
to pay for them. Rudy's sister and brother scraped together several thousand
dollars to hire an evaluator for a second opinion.
Dr. Barry Rosenfeld, a psychologist who directs
clinical training at Fordham University, did not just administer tests. He
spoke to the people in Rudy's life to get a better sense of him—and pieced
together a very different picture.
He discovered that in the early 2000s, Rudy shared an
apartment near Tampa with Rubeka and their brother Mitchell. Mitchell had a
baby boy and Rudy would take care of him. "My son was around 3 or 4. We'd go
out for the night, or on the weekends, and Rudy worked less than us, so we'd
leave my son with him," Mitchell said recently over the phone from Florida. "I
never had any worries about that."
Rosenfeld learned from Norma Gonzalez, a caseworker
who'd met regularly with Rudy in the apartment building where he lived when J
was born, that "[Rudy] successfully manages his own day-to-day needs and has
done so consistently for 3 years."
Rosenfeld noted that Rudy's plan to raise J with his
sister indicated not incapacity, but a responsible recognition of his own need
for help. "There appears to be no evidence that [Rudy]...is unable to adequately
plan for care for his daughter," he wrote.
ProPublica asked a third party to read the two
evaluations and to assess the soundness of their methods. Maurice Feldman, a
psychologist based at the Centre for Applied Disability Studies at Brock
University in Ontario, Canada, researches parenting capacity evaluations. He
said that the two evaluators relied on different methods and
assumptions.
Scroppo's evaluation didn't take into account the help
Rudy planned to have from his family; Rosenfeld's did. "The first evaluator
makes the assumption of the scenario that the parent has to parent the child
totally independently," Feldman said.
Feldman also said that even though Scroppo's report was
relatively thorough, it exhibited a common flaw: It measured mental disability
in isolation from its impact on parenting.
"There is a conceptual leap that the first assessor
used," Feldman said. He concluded that because Rudy scored "low on cognitive
and personality disorder measures, therefore he can't parent," Feldman said.
"But that is a fallacy."
"There is nothing in the first evaluator's report, none
of the materials cited, that would lead me to believe he can't take care of his
daughter."
Scroppo declined to speak with ProPublica about Rudy's
case, citing professional obligations to confidentiality. But he did speak in
broad terms about mental health evaluations in child protective cases, which
make up a significant part of his practice.
"Evaluators are tasked with evaluating the specific
parents, not the support system or other persons in their lives," Scroppo
explained. "It's driven by the fact that only the parent is going to have
ultimate decision making over the child. Although the parent may have —and I
think it would matter if they did—a team to help them, it would hinge on their
ability to be responsible. The law is for me to look at the parent in and of
her self."
Academic studies have found that mental health
parenting evaluations often take this self-sufficiency view of parenting. But
as Feldman argues, "Nobody raises their child in a vacuum."
The American Psychological Association guidelines
actually encourage evaluators to reach out to "extended family members and
other individuals when appropriate (e.g., caretakers, grandparents, clinical
and social services providers, and teachers)."
Yet often that doesn't happen. A decade ago, DePaul
University researchers reviewed 190 evaluations from Chicago's child welfare
system. Almost none of the evaluators called on family members or others
besides the parents. Often, the evaluators relied on single short interactions
with parents or failed to observe them with their children. More recent studies
by researchers in New York and at the University of California, Berkeley found
similar patterns.
"The tests are already less than perfect at measuring
what they were designed to measure—IQ or psychopathology—and they are
far less than perfect at measuring parenting," Karen Budd, the DePaul
report's lead researcher, told ProPublica.
One reason evaluations come up short is money, said
Nicholson, the Dartmouth psychiatry professor who researches parents with
mental illness. "Really thorough evaluation is pretty resource-intensive, and
nobody wants to do them," Nicholson said. "Nobody can actually afford that. Or
they say they can't. Taking a kid away is expensive, too."
Even Scroppo agrees that these cases can be hard calls:
"The severity of the mental illness is important in making any determination.
And sometimes the line is not clear."
When Rudy is well, he is soft-spoken and thoughtful.
"I am really focusing on being a father to my daughter. My dad was a good
dad—he worked hard, he took care of us, and I want to do the same thing for my
daughter," Rudy said last fall, after returning from work at the grocery store
where he stocked shelves.
He also knows he would likely struggle to raise J by
himself. Rudy has bouts of numbing depression and high-paced mania. At their
worst, Rudy's manic states can flare into delusions. He has believed that he's
a businessman and that YouTube videos carry secret messages. The last time he
was hospitalized was in the winter of 2013. He and his sister Rubeka say the
stress of the case, and the threat of losing his daughter, finally overwhelmed
him.
But raising J alone, of course, hasn't been the plan.
"If he slipped into an episode, we would know it," Rubeka says. "We would have
been there to support her together."
Rudy acknowledges there are no easy answers nor perfect
endings. The case has now dragged on for nearly four years. And more hearings
are scheduled for June in the Nassau County family court.
J has "been in foster care for a long time," Rudy said.
"It will be hard to take her out of foster care. [The Department of Social
Services] is saying that she bonded with the foster mom. It's a tough case, you
know."
When authorities take a child, a 1997 federal law
mandates that they must provide parents with access to the programs and
services they need to reunite with their children. If the issue that brought a
child into foster care is homelessness, child welfare systems must find parents
housing. If it's drugs: treatment. If it's abuse: parenting classes. Parents
can be compelled to attend anger management classes, seek counseling or leave
an abusive partner.
But the law does not explicitly cover disabilities,
mental or physical. And in the absence of a clearly applicable federal
standard, at least five states—Alaska, Arizona, California, Kentucky and North
Dakota—have listed mental illness as one of a few "aggravating circumstances"
that exempt authorities from having to provide help to attempt to piece
families back together. Among the handful of other circumstances? Murdering,
torturing or sexually abusing a child.
In New York, courts can relieve child welfare
departments of having to prove they have made efforts to reunify families if
judges deem a mother or father too mentally disabled to parent. That has been
Nassau County's position regarding Rudy. "The department is not under any
obligation to make reasonable efforts to return the child and to make
recommendations [for services] to him," the county's lawyer said in a November
2013 hearing.
The rationale for denying services is often explained
this way: If a parent is indeed so mentally ill that they're never going to be
able to safely raise a child, why drag that family through an extended legal
case and compel taxpayers to make futile expenditures?
But without setting up supports and services, there may
be very little way to know whether a parent can raise a child. Rudy was not
offered parenting classes or help moving to an apartment where J could join
him. No caseworker tried to help Rudy find a program that could support him to
raise his daughter, though supportive-parenting programs exist in New York
City.
"Nobody ever offered me any help," Rudy
says.
In Missouri, where Mindi's case unfolded, the state's
obligation to explore support for mentally ill parents has become an issue in
the courts.
In 2012, a state appellate court reversed a termination
based largely on the testimony of a psychologist who'd administered tests but
never actually observed the mother with her child.
"Even a mental condition that renders a parent unable
to provide adequate care for a child alone does not provide a basis for
termination if the parent has access to additional support because parenting is
frequently 'a group effort,' " the appeals court wrote. "It is because of the
frequently group nature of modern parenting that [the law] does not allow for
the termination of parental rights simply because a parent cannot shoulder the
entire burden of raising a child on his or her own."
While ProPublica spoke to dozens of attorneys around
the country about questionable cases, few termination cases are appealed and
fewer still are reversed—higher courts are typically deferential to trial
court decisions. Missouri appeals courts and the state's Supreme Court have
overturned at least seven other mental-health-based terminations since 2000. We
found another seven cases since 2000 in which New York appellate courts
overturned mental disability terminations.
In the last decade, states including Idaho, Utah and
Vermont have added language to their child welfare statutes to protect parents
with disabilities, including psychiatric disabilities. "A court may not remove
a child from the parent's or guardian's custody on the basis of...mental
illness," the Utah law reads.
But mental health advocates say progress is too slow.
They say that even in states where mental illness is not listed explicitly as a
reason for terminating parental rights, parents still face bias and aren't
getting the help they need.
"People have focused on the language of disability or
mental illness in the laws, and that is important," said Jennifer Mathis,
deputy legal director of the Bazelon Center, a mental health advocacy groups.
"But you also need to provide supports."
In 2011, two years after Mindi's child was removed,
Missouri's legislature adjusted the child welfare laws to recognize the rights
of disabled parents. The change came after news broke of a blind couple whose
baby had been removed over concerns that their disabilities impaired their
ability to raise a child.
The measure affirmed that nothing in the state's laws
should "be construed to permit discrimination on the basis of disability or
disease." Children cannot be removed, nor can parental rights be terminated,
the bill maintained, "without a specific showing that there is a causal
relation between the disability or disease and harm to the
child."
As it was originally introduced, the Missouri
legislation noted that in making child removal and parental termination
decisions, the state "shall consider the availability and use of accommodations
for the disability or disease, including assistive technology and support
services." That language—the sort that advocates for parents and for people
with psychiatric diagnoses say is needed to stop unnecessary family
separations—was removed from the final legislation.
In Mindi's case, her daughter's foster parents and the
state of Missouri asked the judge in 2011 to terminate Mindi's parental rights
and for Q.A.H. to be adopted. The reason her rights should be terminated?
Citing state law, lawyers for Q.A.H.'s foster family wrote that Mindi has "a
mental condition which is shown by competent evidence either to be permanent or
such that there is no reasonable likelihood that the condition can be
reversed."
The petition rested largely on reports of the event
three years earlier, when, after the delusion about her daughter's rape, Mindi
brought her daughter to the hospital.
In 2012, a Missouri trial court granted the petition to
terminate Mindi's parental rights, formally severing her connection to Q.A.H.
Mindi was "unable to knowingly provide [Q.A.H.] the necessary care, custody,
and control" because, the judge wrote, she "has delusions that then become her
reality."
Earlier in the case, Mindi had regained custody of
Q.A.H. after eight months of separation only to lose it again after refusing to
allow visits from Q.A.H.'s father, who Mindi says was abusive. Such lack of
cooperation is not legally sufficient to permanently separate children from
their parents, but the judge who terminated Mindi's parental rights chalked up
her claim of abuse to ongoing delusions—though no evidence was presented on
this, one way or the other. Q.A.H. was placed back in foster care, this time
with a new couple.
The judge also said in his opinion that Mindi had made
strange faces while sitting in court, an "affect," the judge wrote, which "is
quite unusual in termination of parental rights proceeding, but is consistent
with mental health diagnosis given by [the court-appointed
psychiatrist]."
Mindi's lawyers and other attorneys who represent
parents like her say the judge's reaction is common: Actions and statements
that might pass without notice in people without a mental illness are
pathologized in people with a diagnoses. "People who have those records at the
back of their mind are looking for something to support their theory that
she's not stable," said Sandra Wirtel, Mindi's court-appointed
attorney.
Mindi and her lawyers appealed the 2012 ruling, and the
following year a Missouri appellate court sided with her. The trial court
decision, a three-judge panel ruled, "utterly fails to establish that [Q.A.H.]
would be harmed by a continued relationship with Mother."
The appellate judges added that the judge's observation
of Mindi's facial expressions "does not constitute reliable and substantial
evidence on the critical question of Mother's present mental
condition."
Mindi began preparing for Q.A.H. to return, setting up
a bedroom with a pink bedspread. They had not seen each other for nearly a year,
and to rebuild their relationship, Mindi and Q.A.H. were allowed to begin
visits. Her daughter was bigger, more talkative, her dark blond hair now in
long curls. At first, Q.A.H. was shy, feeling out her relationship with this
woman she'd been separated from. But then she asked her mother to play a game
Mindi had made up when Q.A.H. was younger. "She remembered that," Mindi
said.
Mindi thought her daughter would be home for Christmas.
But in late 2013, Mindi's lawyer called her to tell her the case was not over.
Q.A.H.'s foster parents, joined by the state, had appealed the case to the
Missouri Supreme Court. Visits were halted again. The judges heard arguments in
the case two months ago.
In 2011, Mindi gave birth to a son named Jace, whom
she's now raising capably on her own. “I couldn’t see how they could keep one
while I had the other,” says Mindi. (Steve Herbert for
ProPublica)
When she's with her son, Mindi can, for a moment,
forget that for the last three years her life has been consumed by the fight for
her daughter. Mindi enrolled in college again. She spends a lot of time at her
Baptist church—Wednesday night Bible study and Sunday services. She now lives
in the home of a family friend who is mostly away—Mindi's father died when she
was young and she's estranged from her mother.
Late last year, she started to meet with the foster
parents for monthly mediation sessions. Q.A.H. had lived with them for more
than two years now.
To her attorneys, Mindi's case still seemed like a sure
win. In 2007, the Missouri Supreme Court restored the parental rights of a young
mother who'd been diagnosed with bipolar disorder.
Judge Richard Teitelman sits on the Supreme Court of
Missouri. Speaking broadly about such cases, he told ProPublica, "given the
number of people in this world who are bipolar, or have some mental illness and
who raise children very effectively,it would not seem to me that it should be a
status thing—that anyone can say, if you're mentally ill you can't be a parent,
you can't have a child. That does not seem to comport with today's
reality."
In the early afternoon of March 25, Mindi received a
phone message from the lawyer appointed to represent her in her parental rights
case. The news was what she feared. "I just lost my daughter," Mindi wrote in a
message to ProPublica.
The Missouri Supreme Court ruled, 6-to-1, that the
lower court should be granted broad discretion in making decisions about the
facts of a parental termination case. Though the judges noted that the state
still had an obligation to prove that a parent's mental condition poses a risk
to the child, they wrote that since the trial court had believed Mindi was a
danger, the Supreme Court, which did not hear testimony from witnesses, was in
no position to disagree.
Judge Teitelman issued a short lone dissent. "The
evidence in this case...fails to demonstrate clearly that the Mother is
currently unable to adequately care for the child and that she will be unlikely
to do so in the future," he wrote, adding that the court's decision had been
"simply speculative."
In early May, Q.A.H.'s adoption went through. Mindi has
no contact with her daughter.
This
project was supported by the Reporting Award at NYU's Arthur L. Carter
Journalism Institute. Research assistance was provided by Lecia Bushak and Amy
Zhang