This week the Arizona legislator passed both bills to create the new Department ofChild Safety as well as funding for the operations.
This week at the legislature
This week the Arizona legislature convened for a special session called by the governor to address the issues with CPS. The results were disappointing but not unexpected.
The focus of this session was to pass the bills to create the new CPS system, now called the Department ofChild Safety or DCS. People need to understand that CPS is not abolished. It was simply moved out of the Department of Economic Security (DES) and now is a stand alone department that reports directly to the governor. The legislation proposed this week was to make that temporary change a permanent one.
Unfortunately the media coming from all sources was ready to paint any legislator who was not in support of the bill as someone who didn’t care about the safety of children. The bills passed.
They passed one bill to supply the funding for the new agency. The second bill was to create the new structure for DCS and change the wording in the current legislation to reflect the name change. If you review the 218 page bill, there were very little changes other than 13-14 pages addressing the new structure.
If you listened to those speaking on behalf of the new department you would believe that vast changes are taking place and that an independent oversight committee was established to make sure DCS was following the laws. This isn’t quite accurate.
The foundation for the new department was created. The majority of changes discussed during the committee meetings was more Director Flanagan’s vision for the new agency. The problem is as directors change and the governor’s change the policies become whatever those in charge decide they should be. This can be a problem moving forward.
Did the legislative process go as it should or as anticipated?
It is really disappointing when our state government runs similar to our federal government. The state requires all bills to be posted by 4:00pm in order to be heard in committee the next day. This allows for the people to read the bill and submit comments or prepare to speak. Unfortunately the Senate bill SB1001 was not published until around 4:30pm and we have no idea what time SB1002 for funding was actually published.
We heard that while the legislators were all called into session on Tuesday, the bills weren’t finished. They were still writing them on Tuesday!
Then in order to accomplish what they wanted in the timeframe they expected, the legislature had to suspend the rules in order to have the committees hear the bills, despite the fact that they were not published in time. These are tricks which results in limiting comments or questions about the bills.
To further the issue, the House committee that had been dealing with the CPS issues all last session was Health and Human Services. We had been working with a number of legislators on this committee, so many of them were familiar with our report as well as our concerns. On Tuesday rather than having Health and Human Services hear HB1001, it was instead given to Public Safety. We only found out about it at the last minute.
Were you able to attend any of the hearings or speak at any of them?
We were able to attend a portion of the Senate Appropriations Hearing as well as a portion of the House Public Safety Hearing.
We did attend the full Senate Health and Human Services Committee hearing and we were able to speak.
We listened to Director Flanagan’s vision of CPS, now DCS. He has some good ideas and he does understand some of the issues. However, if he doesn’t listen to the parents and families affected by CPS and the removal of children he will fail to provide corrective action that will result in positive reforms. So there is still the potential of creating a more abusive agency.
However, after everyone gave their positive spin presentations and others made supportive comments, I was able to give my testimony. During the testimony even I heard gasps from those in the audience from what I said. Some of the legislators understood and were sympathetic to what families have had to go through.
What did take place that was very positive to our cause was Rep. Ableser who spoke up in the understanding of our issues and stated he has received a number of calls from constituents with similar issues. We are not alone and he knows that.
More important was that the chair of the committee, Sen. Nancy Barto, also spoke up and voiced similar concerns to ours – that the new legislation doesn’t have any teeth. So we got this on official record as well as statements from the committee that this is only a foundations and there is still work to be done.
Did our listeners calls make any difference?
Absolutely! Even though we didn’t get the results we would have liked, we heard over and over from legislators on the committees to others we spoke with that they have received numerous calls with concerns about CPS and the out-of-control agency it has become. Those on the committees acknowledged these calls and concerns from constituents and voiced them on the record. They were listening!
That might not sound like a lot right now, but if you were at the committee meetings numerous times legislators presented questions, especially to Director Flanagan, from people like you.
Did anything else come from this process?
Some positive things came from what happened this week.
Director Flanagan heard our testimony in the Senate hearing, he was there, he heard the gasps from the audience. He was disappointed that someone spoke out against the bill as written. They didn’t expect anyone to take a negative stand, especially on record on the floor.
This resulted in Director Flanagan actually asking to speak with us after the last session. We spoke with him briefly and he knows he has work to do to gain the support from the public, especially those who have been harmed by CPS in the past. We gave him a copy of our 53 page report and he has promised to read the report and get back to us with a response. He is also open to speaking with us in the future. If he is true to his word, then he will reach out and listen to families like ours and people who are trying to make meaningful reforms to protect children, but also to prohibit abuse from the system;
We met with even more legislators which permitted us to make them more aware of the problems within the CPSagency. It isn’t just bad parents. It is about an agency that has not been following the law.
We also made contacts and have referrals to legislators willing to work with us to create legislation. These contacts are important and we hope to work with them over the next couple of months to draft legislation that will make the necessary changes and hold the agency accountable.
We also challenged legislator’s knowledge of the bill. Everyone believes that there is an oversight of the agency through a Community Advisory Committee. Here’s what the committee is and the members of the committee:
A. The Community Advisory Committee is established to provide a community forum:
To inform the department, analyze current law and policy and make recommendations to improve the ability of the department to increase the safety of children, respond to child maltreatment and ensure the well-being of and timely permanency for children who are referred to and involved in the child welfare system.
For the collaboration among state, local, community, public and private stakeholders in child welfare programs and services that are administered by the department.
To improve communication between mandatory reports and the department.
B. The committee consists of one representative of each of the following who is appointed by and services at the pleasure of the director:
Child welfare agencies that directly provide contracted services to children and their families
Child advocacy organizations that deal with child welfare system policy issues
Current or former foster or adoptive parents
Medical providers, with a preference for pediatricians, who have experience in diagnosing and treating injuries related to abuse and neglect
Volunteers with foster care review board or court appointed special advocate program
Persons with an academic appointment to a state university who conduct research in child welfare services, child maltreatment or child abuse
The courts. The representative must be involved in child welfare issues
A rural area in this state who has experience in the child welfare system
A Native American tribe or nation who has experience in the child welfare system
A child advocacy organization that advocates for or represents children who are victims of crime
Persons who have experience with children with special needs and the child welfare system
A law enforcement agency. The representative must have experience with the department on cases that involved criminal conduct allegations.
Where are the families or parents represented in this committee? Where is the voice to report when the agency or it’s service providers fails to uphold the law or violates the law?
Once again it isn’t there. THAT is what we must change!
What can we do next?
We need to get to good legislators elected that understand the problems with CPS/DCS. Do they want to expand the agency and give them more power? Are they just giving the politically correct answer of “it’s to protect the children,” or “child safety.” Do they understand the issue from the family’s perspective? Do they understand the abuse FROM the agency? Those are the questions you need to be asking in your district.
If you live in LD28 it is important to remove Kate Brophy-McGee from office and replace her with someone who will actually listen to the constituents. She refused to meet with us to discuss the CPS issue, even though we live in her district. These are our elected officials, so even if they may not agree with your position on an issue, it is still their responsibility to at least hear from their constituents.
Shawnna Bolick is running against her and has been very instrumental in helping us raise the awareness of the problem to legislators. We need someone in the legislature who will listen.
Kelli Ward in LD5 in the Senate was helpful in getting us on the floor to speak. She also seems to understand the issue. She was the only dissenting vote on the appropriations bill. She didn’t want to give them all the money at one time and instead wanted DCS to meet benchmarks before obtaining additional funding.
Ed Ableser in LD26 in the Senate was very sympathetic to my testimony as well as those families that have had to face a CPS case. He wanted to get a definition and clarification of neglect, and he understands neglect is one the reasons CPS has used to remove children. He also offered an amendment to change the name of the bill to include “family preservation.”
Nancy Barto in LD15 in the Senate, and chairman of the Health and Human Services Committee also understands the issue and acknowledges that this is only the beginning. Listen to her opening remarks during the committee hearing, which is posted on our website. Sen. Barto also met with us prior during the regular legislative session.
David Bradley LD10, however believes CPS is the child’s savior, based on his comments made during the Senate hearing. He formerly worked for CPS. He did not appear to understand the issue from the family perspective.
Carl Seel in LD20 in the House, has been very supportive and has helped throughout the entire session deliver our message to other members. He understands the issue as well the constitutional implications of the agency’s policies. Carl is also a voice on the House floor who wants answers.
REMEMBER, this is only one issue in the state but one we are all obviously passionate about. Before making a decision on how to vote in the primary in August, contact the candidates and ask them questions. We are not endorsing any candidates but are just reporting which ones have been supportive or unsupportive about the CPSissue.
This is only the beginning as we reach out to legislators in the upcoming months.
Next week’s show
Next week we will continue to discuss the CPS topics and what you can do to protect your family.
BOSTON, This month, dozens of high level Massachusetts politicians enjoyed immunity in exchange for their testimony in the corruption, bribery, and racketeering trials of various legislators and family court probation officers charged with running an organized crime right through their State offices. Several co-conspirators have been convicted and jailed, leaving Massachusetts leaders with important questions to answer about the human toll organized crime may have taken on the Commonwealth’s most vulnerable families? Are the Probation Department’s ineffective “offender rehabilitation” programs paid for with the blood of Massachusetts taxpayers?
Regardless, Massachusetts leaders are now faced with the question of how to go about empowering good judges, social workers, and probation officers who are committed to rescuing themselves and the State’s most vulnerable families [from the system itself?] In order to answer this question, we need to have a real conversation about why these same corrupt courtroom cronies repeatedly failed to save Jennifer Martel’s life? Where was the Department of Children and families?
Most men voluntarily engage in safe, loving relationships with their families. But Martel’s boyfriend and murderer Jared Remy was not most men, he was the son of a celebrated Red Sox sportscaster and a violent criminal. By September 2011, Remy’s privately bankrolled defense attorney Peter Bella had convinced Massachusettsjudges to close a staggering 18 cases charging Remy with dozens of traffic, violence and/or drug related related offenses.
Instead of providing services to Remy’s victims to help them recover and stay safe, Remy was rewarded by the State with leniency, therapy, allies, advocate, and other State benefits which his victims did not enjoy. The State also targeted victims who reported Remy’s violent crimes by providing the offender with a fraudulently obtained restraining order, even awarding the Remy family sole and joint custody of the victim’s child. The court sealed the case after allowing the Remy family to terrorize the young teen mother through caustic, intrusive and expensive litigation spanning several years.
The sole beneficiaries of these State programs appears to be limited to the vendors who provided the services, as ultimately, the State’s sponsorship of Remy’s violent crime spree allowed it to continue undetected for almost 20-years.
At the time of Martel’s murder, Remy’s record was virtually clean. Only twice did the courts find Remy guilty, and on ten occasions, the courts outright dismissed the charges against him. The courts also granted Remy continuances without findings (CWOF’s) that resulted in dismissals on six other occasions.
Yesterday marked perhaps the first time in history that the Massachusettscourtsystem created a meaningful plan to protect the public from one of the system’s best customers when it sentenced Jared Remy to life in prison without the possibility of parole for stabbing Martel to death in front of their 4-year-old daughter and several onlookers in August 2013. Remy’s arrest brought an abrupt end to the violent career predator’s court endorsed crime spree, kicking off the only peaceful time some of his victims may have ever known.
But according to Attorney Bella, there was no “pay to play” scandal involved with Remy’s case because Remy never received any special treatment from the courts.
In other words, the Remy case was just some deadly business as usual in the Massachusetts courts.
“If there’s a sign of hope that arises from Martel’s vicious murder,” says former prosecutor Wendy Murphy, “let it be that the public takes a closer look at the gushing flow of money from DC that literally rewards violent male offenders with cash, therapy and training programs AFTER they get in trouble with the courts for assaulting the crime victims who live with them.”
A group home counselor and driver for ChildFirst Services faces numerous drug and weapon-related charges after state troopers found suspected heroin, cocaine and raw marijuana at his home, the Wayne County district attorney’s office said Friday.
State troopers and the district attorney’s office drug task force detective also found drug paraphernalia, an electronic scale and two .22 caliber revolvers with obliterated serial numbers during the search of the homeAbraham Nyanti was renting in Lake Twp.
District Attorney Janine Edwards said authorities were still investigating whether the 24-year-old sold or gave drugs to any youths but at this point was “thankful that the officers were able to make this arrest before a child who Mr. Nyanti supervised was hurt.”
Police went to Mr. Nyanti’s 107 Batzel Roadhome in Lake Ariel after neighbors had complained about “suspicious activities” and smelled burnt marijuana when they spoke with him at his door, authorities said.
Mr. Nyanti allowed police to search him and his home, during which police found, among numerous items, multiple bags of suspected heroin stamped with the word “Barbie” and one bag of what authorities believed was cocaine, prosecutors said.
State governments are permanently taking hundreds of children from their parents—under a bizarre theory that they might, in the future, be too mentally ill to care for the young.
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.)
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.
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.
“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.
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.
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 psychiatrist’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.
Five states have listed mental illness as one of a few “aggravating circumstances” that exempt authorities from having to attempt to piece families back together. Among the handful of other circumstances? Murdering, torturing or sexually abusing a child.
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.
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.
The Prime Ministerial Apology to the Stolen Generations was delivered on February 13, 2008 but this photo was taken in October 2008 at Old Tent Embassy - Photo by Gerry Georgatos
Former Government worker for the NSW Department of Families and Communities, Debra Swan on National Sorry Day joined one of the 15 protests happening across the continent to not only remember the Stolen Generations but to point out that they are continuing. In NSW, one in 9 Aboriginal children is ripped from their families into “out of home care”.
Ms Swan said, “I have seen the injustice, and how unfair this system is, with my own eyes.”
According to Ms Swan, “Too often, removals happen without any consultation. Parents come into the office frustrated and angry, as anyone would be after having their children ripped away from them.”
“They are then written off even further, branded ‘non-compliant’ or ‘aggressive’.”
“The Children’s Court system is stacked against Aboriginal people. I have seen too many solicitors who have no idea what they are doing, or just push our people to go along with the demands of the Department.”
“Parents are told that unless they agree to orders, they will be denied any access to their children.”
“Justice Woods did his Royal Commission into Child Protection and he said that Aboriginal are removed from their families for much less than what are non-Aboriginal children.”
“I have seen the biases, the discrimination, the prejudices, the drive to assimilate Aboriginal people. Towards the end of my time there, my eyes opened up to them and especially after I left I realised how they assimilate us, the Aboriginal workers.”
“The Department may say it has cultural education of its staff but that is not true. What they really have is an ulterior white picket fence vision for everyone. They disregard the fact that Aboriginal cultures are not about white picket fences. They disregard our definitions of family. We are not into nuclear families with mum and dad alone at the top. In Aboriginal families there is the whole village, there are the mum and dad but also the aunties and uncles, the grannies and granddads.”
A Department ofChild Protection worker in Perth, who is Aboriginal confided, “They do not even consult us as Aboriginal workers about Aboriginal families. They dismiss us, if we speak up we are shuffled out.”
“The Department is about their line, and their line is a about the White workers making all the calls. We, as Black workers are only in there to make up the numbers on the book, to cover their backs that there is equality, but there is not. Child Protection is racist, because it is all assimilation and doing as they say; you speak up as a worker and you’re out of line.”
“We have no choice but to tell our people to bow down, to keep quiet, to not piss off the White workers or they’ll be tarnished as ‘aggressive’. That they will lose all hope of being with their children. And the Childrens Court doesn’t listen to families, only to the White workers and the DCP legal team who treat kids and families like they’re a dime a dozen.”
“Why are kids being removed at record rates? It’s not because of neglect, it’s not because of a lack of love, it’s because they are seen as not assimilating.”
But many First Peoples live culturally different lives to the rest of the Australian population. There are effectively two cultural systems on this continent – Western-based cultures and First Peoples-based cultures and they clash, that is where the majority Western-based cultures attempt to dominate them and demand assimilation.
Indigenous Social Justice Association President, Ray Jackson was himself a removed child during the Second World War. “My White father was killed on the Kokoda Trail and instead of my Aboriginal mother being supported with a war pension, her reward was to have me takenaway from her.”
“The pain of being removed never leaves you, not for the child or the parent.”
Mr Jackson, like Ms Swan, argues that there are two different cultural systems on this continent that can coexist but that the Western-based cultural majority does not let this happen and instead pushes its assimilation.
“They push on us the white picket fence, well our culture does not care about a white picket fence. Child Protectionworkers do not look at whether there’s love in the family or respect for one another, or how to help a family that needs a helping hand.”
“Child Protectionworkers come into homes and judge hygiene by how polished a home is, well it’s not our way to be slaves to how shiny a home should be.”
“They look at whether the children are wearing shoes, and if they’re not then they jot on their report sheets that they are not takencare of; well we may like to be barefoot as often as we can. But if they’ve got a problem with shoes, and we don’t have shoes, well don’t take away the children, just bloody well give them a pair of shoes,” said Mr Jackson.
University of Sydney Technology Jumbunna House senior researcher, Paddy Gibson, now living in the Northern Territory, is angry that more Aboriginal children have been removed from their families today than at any time in Australia’s history.
The Northern Territory Children Commissioner’s annual report showed that in the year to June 30, 2013, more than five times more Aboriginal children than non-Aboriginal children were removed from their families. Mr Gibson said that the predominant reason given for this was ‘neglect’, not physical or sexual abuse. But as a researcher myself, I have long argued that the ‘neglect’ has to be articulated. What do they mean by ‘neglect’?
Mr Gibson said that “too often we are seeing Aboriginal cultural practices themselves being classified as neglect.” In other words their Aboriginality is being held against them, their historical and cultural identities are liabilities.
Mr Gibson said that it costs up to $300 per night to keep a single child in care but that this is misspending when funds could have been diverted to families to relieve impoverishment.
Northern Territorian Elder Barbara Shaw said, “There are strong Aboriginal people in all communities who badly need resources and support to help deal with the issues facing our families and to keep our kids safe in their culture.”
“We are all part of extended kinship networks. There is always somewhere they can turn without removing children, but resources and support need to be on the table.”
In the Northern Territory, 70 per cent of the children removed from their families are placed with non-Aboriginal families, usually hundreds of kilometres away, making it near impossible for reunification. And there are those who have said that many of these children are being taken by families who they themselves do it for the quid on offer, and for the effective indenture of the children as domestics. These claims need to be investigated.
“People need to come forward and tell their stories, so australia at large can feel the effect of what is happening to the families that are being destroyed, the families that are disempowered. I urge everyone to come forward despite that they may feel they will be threatened further by the Department,” said Gunnedah Grandmother, Auntie Hazel Collins.
Some believe that a class action by thousands of families will be the only way forward, to shift our not so bright parliamentarians into action, to put in place legislation that restricts the Child Protection agencies from ripping children from their families other than for reasons of obvious physical violence and life-threatening neglect, not because of hearsay, or because parents were angry when confronted by Child Protection – not because of non-compliance, and not because they do not wear shoes. Poverty must never be used to condemn families as criminals nor should the rejection of a Western-based culture be judged as a crime.
The Royal Commission into Child Sexual Abuses by Churches and Orphanages is dealing with less victims than would a Royal Commission into Child Protection – which would be dealing with nearly 100,000 victims since 1930 to today, children ruthlessly stolen from their parents, many from the delivery table of hospital birth rooms. More children have been removed in the last year than there are victims before the Royal Commission into Child Sexual Abuses. The trauma of the Sexual Abuses victims is heart-wrenching and for far too many irreparable. Imagine then the numbers of victims, the children removed from families, today, the trauma, the multiple trauma, the irreparable damage. Who is responsible? The Australian Government is – and they should be indicted. But if the Royal Commission into Child Sexual Abuses is anything to go by, an effectively impotent exercise, then there is no light in sight at the end of the tunnel for the victims of this generation of stealing.
On Sorry Day, many gathered around the nation to protest and call for an end to the stealing of children. In Brisbane, the Department ofChild Protection closed its offices for the day because of the protest on its steps. In Sydney, the Department of Families and Communities kept its workers inside, not a whimper as the rally lasted more than two hours on its steps. In the capital of Australia’s backwater of racism, Perth, a protest took place outside the Department ofChild Protection. A delegation from the rally met with the Department ofChild Protection. Police were called in when the protesters ceremonially danced out the front – unbelievably police arrested three of the protesters, who included organisers of the rally, Vanessa Culbong and Len Culbong. How sickening to arrest people calling for an end to child removals. The police did not have to do this, but they did. It does not wash that “I was only doing my job.”
The racism that is Australian born and bred cannot be allowed to continue – a racism that now sees one in every two Aboriginal children in Queensland known to the Department ofChild Protection. More Queensland Aboriginal children are in the custody of the State today than were removed between 1908 to 1971.
One protester said, “My grandmother and her sisters were taken in the 1930s, her daughter, my mother was taken, then they took me from my mum, now they have taken my children. I never did anything wrong. I love my children. They screamed when they took them.”
Video of the rally and the arrests of Len and Vanessa Culbong