Sunday, October 10, 2004
Broken bonds: child welfare and the battle over terminating parents' rights
The termination process makes parent and child "legal strangers"
Donna Faye Smith's fate as mother was decided, in the end, by three judges she'd never met.
Virginia's Court of Appeals had the task of deciding whether the state should terminate her rights as a parent - an act that would, in the parlance of Virginia law, forever make her a "legal stranger" to the two children in question.
Judges Jere Willis and Sam Coleman zeroed in on Smith's mercurial home and work life. She hadn't held a job longer than six weeks or lived in one place longer than nine months. And she'd been convicted of stealing thousands of dollars from a convenience store in Salem.
A social worker from Roanoke's Department of Social Services said Smith seemed satisfied to have other people care for her children as long as she could visit them. One child, the worker said, was "basically nonverbal" when he went into foster care shortly before his 4th birthday. The other attended classes for emotionally troubled children. Both, he said, were "doing remarkably better" after spending two years in foster care.
Judge James Benton saw things differently. Smith, he said, had quit some jobs but always found others. She'd temped at a cosmetics manufacturer. She'd worked at a hotel and a dry cleaner. She'd mowed lawns. As part of her probation, she'd been tested for narcotics three times a week. She'd never showed a trace of drugs.
The judge sympathized because Smith was tangled in a Catch-22 of contradictory requirements. Social workers said she needed separate bedrooms for her children, so she rented a three-bedroom house. But she couldn't move in because her probation officer ordered her to live in her grandmother's house until she paid court costs and found a steady job.
She made bad decisions, Benton wrote, but they mostly had to do with her poverty and the emotional fallout from an abusive mate. There was no evidence, he said, that "she ever neglected her children or had anything other than their best interests in mind."
Benton's analysis put him in the minority on the tribunal that passed judgment on the 32-year-old mother in October 1999.
Willis and Coleman believed the state was justified in terminating Smith's rights as a parent. By a vote of 2-1, the Court of Appeals brought to an end another test of how the state exercises one of the most formidable powers it possesses.
Terminating a parent's rights is, in the words of the Virginia Supreme Court, "a grave, drastic and irreversible action." Across Virginia, juvenile courts terminate the rights of 1,200 to 1,400 parents a year. In 2003, Roanoke's Juvenile and Domestic Relations Court ruled on 66 parental terminations; Roanoke County's juvenile court made a final decision on 11.
How well does the process work? Are parents given a fair shake? Are children protected?
Those questions aren't easy to answer because the stories behind them unfold behind closed doors, in proceedings that become public only when a case reaches the Court of Appeals. But a Roanoke Times examination of the process opens a window on how the system works - and brings to light questions about its effectiveness and fairness.
Critics charge that the system is stacked against parents. Virginia, they say, invests too much in punitive measures and too little on child welfare programs that would truly help children and families in distress.
In some cases, the critics say, welfare agencies and courts target parents whose main fault is they're poor or victims of domestic violence, rather than abusive or neglectful. This, critics say, harms children by tearing them from loving parents and casting them into an overloaded foster-care system where they're shuffled from place to place.
Virginia pays among the lowest rates in the nation for court-appointed attorneys who represent mothers and fathers in parental termination cases. By contrast, the state has considerable resources at its disposal to investigate parents, pay lawyers and summon caseworkers and experts to testify - a capacity the U.S. Supreme Court has said "almost inevitably dwarfs the parents' ability to mount a defense."
"There's an amazing inequality of resources," said Raymond Hartz, executive director of the Legal Aid Society of Eastern Virginia and a former staff attorney with the Virginia Poverty Law Center. "And the whole push now is to terminate rights as quickly as possible. There's a federal law that puts a timeline on the states. It puts a lot of pressure on the Department of Social Services and the courts to almost, when in doubt, terminate."
Welfare officials say that isn't so. Parents' rights are terminated as a last resort, they say, after parents have had a chance to turn things around; the process generally takes one to four years. Social workers say they follow principles set by the nation's high court, which has said the right of parents to raise their children "does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State."
The system's No.1 priority, social workers say, is to keep families together by providing counseling and other help.
"A termination case is when you've kind of reached the end of the line," said Jim Weber, chief social work supervisor for Roanoke's Department of Social Services. "All of the way we're trying to preserve the family, to prevent the removal of the child."
"We keep an awful lot of children safe," added Jane Conlin, the department's director. "We return a lot of children home to parents who are in far better shape and to families that are in far better shape than when those children were removed."
Starting from zero
Most of the time, welfare departments remove children from their parents' homes not because of physical or sexual abuse, but because of complaints of neglect. Allegations can include inadequate supervision, unfit living conditions or, often, substance abuse.
Usually, the families in question are struggling financially; affluent parents are more likely to be able to check into rehab or have relatives with the resources to help in a crisis.
"Most people who are going to have their kids removed are people on the wrong side of poverty - or skirting the line so closely they can't get ahead," said Matthew Clark, a Roanoke attorney who often represents parents. "One weekend in jail or a slip-up at work, then you have the anonymous tip the child is being neglected and, lo and behold, social services is part of your life."
In the 2003 budget year, state figures show, Virginia welfare departments removed more children from their families because of inadequate housing (498) than for physical abuse (469).
Donna Smith, the Roanoke mother who lost her case in the Court of Appeals in 1999, said she went through "a bad depression" after leaving a much older man who'd abused and controlled her since she was a teen. "I didn't know what freedom was until I was 30 years old."
He'd never let her work, she said. Her reintroduction to the job market was difficult and she found it hard to get a home of her own starting out from zero. Eventually she lost custody of all five of her children, though she said she maintains contact with three of them.
Under the law, local welfare agencies' priority is to return children to their parents as quickly as possible. But if the welfare department convinces a juvenile court judge that the problems are serious, the child can stay in foster care for months or years.
The law gives parents a year to address the problems that landed their children in foster care. During that time, the agency is supposed to give the parents and children services - drug counseling, parenting classes and the like - with the aim of reuniting the family. Often, social workers try to ease the trauma of removal by placing the children with grandparents or other relatives.
"Once we have custody of a child, we don't stop trying to resolve the issues," said Weber, the Roanoke social work supervisor. "We continue to work with the family and the child."
In Smith's case, social workers testified they'd done all they could, but she'd refused many services and was lax about going to counseling. In a recent interview, Smith disagreed. "They didn't do all they could," she said. "I didn't do everything that they wanted me to do. But you have to have a medium - somewhere where you meet to help someone."
If social workers believe a parent hasn't made real progress, they can ask the judge to set a new goal for the child, such as adoption or long-term foster care, and terminate the parents' rights.
In some cases, welfare officials say, termination is what's best for the children.
In 1998, the Court of Appeals considered the case of a Roanoke mother who denied that her children's father had molested them. She urged her kids to repudiate their allegations, becoming, in the court's words, "a party to the abuse." The court upheld termination of her rights.
In 2003, the appeals court noted that a Roanoke father, Lorenzo Alphonso Wright, had six convictions for domestic violence. And he'd been arrested again and charged with battering his wife a month after their children, ages 5, 6 and 8, had been picked up by social workers.
The welfare department had moved in after getting a tip that the children had been wandering the neighborhood alone at 1 or 2 a.m.
Tests indicated Wright exhibited "mixed personality disorder" and was "suspicious and distrustful, rationalizing and blaming others" for his problems. His efforts to reform were "hollow at best," a trial judge said. He exploded in anger at social workers and got booted from parenting classes. On the witness stand, the judge said, Wright made his affection for his children clear. He said he'd do anything to get them back. But the judge said his actions spoke louder.
The appeals court agreed. It upheld termination of his rights.
Most cases end like Wright's; the Court of Appeals almost always endorses lower courts' termination rulings. One exception was the case of a Virginia Beach mother, identified by the appeals court simply as C.S.
Her family's odyssey began in October 2000. She was at work early one morning when her four youngest children - ages 21 months to 11 years - were spotted wandering alone at a Kmart. They appeared healthy and well fed. An older child, a teenager, had been baby-sitting, but had left them unsupervised.
A welfare investigator outlined a safety plan with C.S. to make sure it didn't happen again.
The next day the social worker went by C.S.'s house. Everyone was gone. Even though C.S. was not under any order to stay at home, the investigator became concerned she had "absconded." The investigator went to court and obtained an emergency removal order.
Three weeks later, the investigator found C.S. at her sister's home in Hampton. The investigator and two police officers seized the children and detained the mother.
Virginia Beach's Department of Social Services was concerned the children weren't in school and that the mother distrusted the government and lived a "secretive lifestyle." C.S. was ordered to undergo a mental exam, get a better job and make sure her children attended school.
A psychologist concluded the mother wasn't disturbed. She was doing well despite the post-traumatic stress she'd suffered because of her children's removal.
The children were separated and shunted about, enduring at least 17 different foster-home placements among them. Nevertheless, the agency said C.S. was disruptive because she questioned the care they were getting.
The agency granted visitation, withdrew it, restored it, withdrew it again. The requirements she needed to follow were "continually changed and increased," the Court of Appeals later wrote, even though she was making progress toward meeting the original goals. The mother said a social worker instructed her not to tell her youngest, B.B., that she was his mother. In front of B.B., the appeals court said, the worker referred to the mom as "the Nice Lady."
After two years, a trial court gave C.S. custody of the other three children, but said her bond with B.B. was "not sufficiently formed." It awarded custody to the welfare department.
A year later, in September 2003, the Court of Appeals ruled there was no evidence C.S. had ever abused or neglected her children. The judges instead rebuked the welfare department, noting that the mother's therapist had described the agency as "adversarial and judgmental ... almost to the point of intimidating." A lawyer appointed to represent B.B.'s interests described the agency as "totally disingenuous from day one," comparing its efforts to "amputating a finger to get out a splinter."
The appeals court reversed the termination of the legal ties between C.S. and B.B.
Too many chances
Clark, the Roanoke lawyer, said that in some cases adversarial stances by social workers set up parents to fail. Moms and dads without reliable transportation struggle to make it to counseling sessions while hanging onto their jobs. If they miss an appointment, Clark said, the welfare department punishes them by revoking visitation with their children, then faults them later for not bonding with their kids.
The contours of the process are framed by a 1997 federal law, the Adoption and Safe Families Act, which sets deadlines and wields mandates with the goal of preventing children from languishing in foster care.
Richard Wexler, executive director of the National Coalition for Child Protection Reform, an Alexandria-based advocacy group, contends the law pushes cases toward termination of parents' rights by penalizing states for giving parents extra time and rewarding them for padding their adoption statistics - offering state welfare agencies bonuses of $4,000 to $8,000 for each adoption that exceeds their previous year's total.
Ellen Weinman, a Salem lawyer who represents children in custody cases, disagrees that the system is hard-wired against parents. In fact, she said, "we worry more about parents than we do about what's in the best interest of the child. I think that's overshadowed by, quote, 'parents' constitutional rights.' I think we give parents too many chances to make things right."
Children, she said, need permanency. "A year to an adult is not the same as for a child," she said.
On the child's side
Critics of Virginia's child welfare system point to studies that question whether the state provides parents with adequate legal representation or with the services they need to keep families together.
A study by the National Coalition for Child Protection Reform ranked Virginia 49th in spending on child welfare during the 2000 budget year. The study estimated that Virginia's child welfare spending worked out to $70 per child living in the state. Only Mississippi ($65) ranked lower, and many neighbors spent much more, including North Carolina ($142) and West Virginia ($341).
"The state is very cheap," Salem lawyer Weinman said. "Obviously, the best thing is to do preventative services. Unfortunately, those are the first things that get cut when we get into these budget crunches."
The U.S. Department of Health and Human Services said Virginia falls short of meeting most federal goals for protecting children and supporting families involved in the child welfare system. The department's survey found that Virginia welfare agencies failed in one of every three cases to do an adequate job of helping families better provide for children's needs. In Bedford County, HHS found, the welfare department failed to do so half the time.
Another study, commissioned by the American Bar Association, faulted the pay that Virginia provides for attorneys appointed to represent parents who can't afford a lawyer. Typically, an attorney can expect less than $500 in fees to handle a termination case in juvenile court, a process that can take more than a year and involve numerous hearings, stacks of paperwork and complex questions of law and fact.
"A number of attorneys candidly admitted that there is a disincentive to do all that could be done when representing a parent in abuse and neglect cases because of the fee ceiling," the report said.
In the Roanoke Valley, lawyers say local attorneys who represent parents don't let questions of money affect the quality of representation. Juvenile Court Judge Philip Trompeter said the valley's lawyers conscientiously tackle these cases "as a labor of love."
Trompeter said the rights of parents "occupy an extremely high position" in the system, but "what's in the best interests of children must rule the day." In most cases, Trompeter said, termination of parents' rights is "not necessarily a sad event but a hopeful one" because it gives children a chance to find stable homes.
Conlin, the Roanoke welfare director, said allowing children to be re-abused by returning them to unsafe homes is "not an acceptable failure of the system. We have to come to terms with the fact that social workers, therapists and doctors aren't mind readers. So when there is a close call, you want to come down on the side of the child. But that doesn't mean you go and terminate parental rights. That may mean you wait a little longer before you return that child home, and you take your lumps from the law."
Wexler, the Alexandria-based activist, believes "erring on the side of the child" often means taking a child away from a safe home or from one that could be made safe with help.
Often, these children get stuck in foster care. Many never get adopted, and, even for those who do, the wait is long. In Virginia, federal figures show, the average wait between parental termination and adoption is almost 22 months, the fourth-longest span of any state in the nation.
Wexler argues that children are usually safer in their own homes. HHS figures from 2002 show children are almost twice as likely to die from abuse in foster care than in the general population.
"If you take a child away from a loving family, it can be an experience akin to a kidnapping," Wexler said. "How is that erring on the side of the child? The problem with the system is not that it hurts the parents. The problem is that it hurts the child."
With children's futures in the balance, cases turn into sagas. Hearings are held. File folders bulge. Adults talk. Children wait.
In juvenile court, the process can go on for 12 months, 14 months, longer. If parents lose at that level - and they almost always do - they can appeal to the local circuit court.
The circuit court considers the case anew, often adding six months or a year to the process. Parents can then ask for a review by Virginia's Court of Appeals, a procedure that often takes another six months or more.
For parents who keep fighting, the Court of Appeals is, often, their last chance. It is a repository for stories of fading hopes and tangled lives. A dad from Roanoke tries to turn himself around, attending three AA meetings a week. He swears he hasn't had a drink since his arrest for driving drunk with his 1-year-old son in the car. A mother from Roanoke is so limited intellectually she can't follow instructions for mixing infant formula or giving medicine.
Few cases before the court have been more heart-wrenching than the story of a teenage mother from Amherst County. In the appeals panel's ruling, she was known as L.G., her baby as K.
L.G. grew up in the homes of assorted relatives. She didn't get much stimulation as a baby. She had "deficits." She reported being raped three times between ages 10 and 12 1/2 . The last was a gang rape involving five men. She became pregnant by one of her assailants. In December 1998, at age 13, she gave birth to K.
Mother and baby moved in with L.G.'s mother. L.G. became sexually active. She became pregnant again. She had an abortion. She stole her mother's car and crashed it with K. in the back seat.
The baby ended up with a foster family, and L.G. stumbled through a series of residential programs, including Virginia Baptist Children's Home in Salem and Tekoa in Christiansburg. She ran away six times in six months. She was defiant, emotionally damaged. She was 15.
Social workers filed papers to revoke her rights as a parent.
She was allowed sporadic visits with her baby over the next 21 months. Something changed for her in that time. She came into court, age 17, ready to be a real mother.
She'd studied hard. She'd made the honor roll. She'd worked at a fast-food restaurant. She'd saved money. Everything was with one goal: to be reunited with her daughter.
Her counselor at Tekoa, Cindy Fairchild, said L.G. had made the most striking progress of any child she'd seen in her 20-year career. Other teens looked up to her. "It seems like a light went on," Fairchild testified. L.G. had become "a caring, sensitive, intelligent and remarkable young woman."
The judge said the fact that L.G. "had recently been doing much better" didn't matter. What mattered was she'd failed to make progress within the timetable set by law. The judge severed her rights as K.'s mother.
The Court of Appeals took exception. In June 2003, it reversed the trial judge's decision and ordered him to reconsider, taking into account L.G.'s progress.
The judge did so. The result was the same. It was still best, the judge ruled, that L.G.'s rights as a parent be terminated.