When family law courts decide on cases before them, they rely upon a single given standard: the best interests of the child.
It’s difficult to imagine, however, that this standard was given full consideration in the case of Amanda Underwood, whose excruciating ordeal at the hands of the Berkeley County Department of Health and Human Resources Office of Child Protective Services, is told in detail in this week’s Spirit by reporter Bryan Clark.
It will fall to a federal court to determine the merits of Underwood’s petition to have her parental rights restored. There remains, however, enough evidence to strongly suggest that she was deeply ill-served by the CPS office as a result of its failure on numerous instances to perform as responsibly as it should have.
Indeed, allegations that CPS case workers obtained the removal of Underwood’s children from her home absent any order from the court allowing it and absent any hearing ratifying it; that CPS failed to provide evidence during discovery that would have shown that Underwood completed drug and psychological evaluations, resulting in a ruling against her; that an abuse and neglect petition to terminate her parental rights that asserted a reasonable effort had been made to prevent the children’s seizure would not be filed until five days after the ruling to terminate, are all deeply troubling.
In fact there is compelling evidence, based on 23rd Circuit Judge John Yoder’s ruling, that CPS was complicit in fostering a climate of mistrust that ultimately sabotaged Underwood’s efforts to satisfy the court’s requirements and secure custody of her children. The mother even asserts in a complaint before federal court that one of the social workers assigned to her case initiated a campaign of retaliation against Underwood for her having the temerity to stand up to the case worker when CPS first appeared at her front door in 2009.
What is mind-boggling is that there was no evidence of abuse or neglect, or drug use, except in allegations contained in a number of anonymous — and ultimately unsubstantiated — phone calls made to CPS in 2009, but with respect to the one detail upon which CPS began to build its case against Underwood — that she had missed two scheduled vaccinations for one of her children — CPS neglected, for its part, to seek or offer assistance, resorting instead to the extreme action of seizing her children from her home.
How can this be argued to have been in the children’s best interest?
Can the DHHR reasonably defend its own case workers threatening Underwood with kidnapping when their own forced seizure of the children by these same case workers — absent any order from the court allowing it, absent any hearing ratifying it— appears to be nothing other than a kidnapping itself? Indeed, 23rd Circuit Judge John Yoder himself ruled that the removal of these children constituted a clear violation of Underwood’s due process rights.
And can DHHR seriously investigate an allegation that Underwood’s husband Travis Harrell once physically dragged one of her children across a yard — never proven — when the removal of all three of the children from their mother’s custody required just such an application of brute force against the children by these case workers?
And what of the accountability of others involved in the case? Why were court orders that would have returned custody to Underwood never filed? Why was an order releasing her from the requirements of drug screening never filed? Why was an order approved by Yoder for a home study never filed? Why was the home study never completed?
There is a tremendous need to improve this state’s family law system. If DHHR wants to take its role seriously, perhaps it should start with its allowance of anonymous complaints.
West Virginia family law courts, unlike those in some other jurisdictions, are closed to outside review, ostensibly to protect the rights of families. This is, of course, nonsense, and in the case of Underwood, this veil of secrecy has operated instead to ensure that the injuriousness by its courts and its courts’ officers entertain no scrutiny.
If West Virginia insists, however, on maintaining such secrecy, what harm does it do to require those who make accusations against others to submit to confidentiality agreements with DHHR, so their own motivations can likewise be reviewed?
What does it say about a judicial system that authorizes more seizures of children per capita than any other state in the nation and then tolerates boilerplate memorandums from its Supreme Court of Appeals such that it is unclear whether the high court’s justices had even seriously reviewed the cases before them at all?
What does it say about a judicial system that couldn’t duly recognize the ethical conflict in allowing court-appointed guardians ad litem to moonlight as adoption attorneys, hence allowing them to profit from the very outcome they argued before a court to obtain? One is forced to wonder how widespread such a practice remains despite a 2010 opinion barring it by the Public Defender Corporation, as well as advisory opinions by both Berkeley County Prosecutor Pamela Games-Neely and the state Bar’s Office of Disciplinary Counsel.
The state’s reliance upon federal money for its foster care program is equally disturbing. Had Underwood been lawyered up from the start, rather than attempting on her own to navigate the labyrinthine requirements of the court, it is unlikely that the “perverse incentive” that fuels the removal of children would have been employed. Underwood’s biggest crime, it seems, was being poor.
We’ll finish where we started — with the standard of the best interests of the child.
We see nothing to conclude that Underwood’s shortcomings as a parent were in any way equal to the response of the family law system against her. Indeed, she appears to have operated in good faith to make every effort to meet the court’s requirements to demonstrate herself a fit parent. The greatest harm done to this family, and to her children, appears to have been committed at the hands of the Berkeley County’s Office of Child Protective Services, which failed miserably in its efforts to be thorough and responsible.