Amanda Underwood never failed a drug test.
She never abused her children.
And a child services report rated her home in the lowest category for risk of abuse and neglect.
But in 2010, her parental rights were terminated after it was learned she didn’t take one of her children to a scheduled immunization.
All her attempts to reverse the termination have so far failed.
BRYAN CLARK Spirit Staff
Editor’s note: This story involves three young children. Their names have been changed to protect their privacy.
RANSON — Amanda Underwood says Mary Carper and Andrew Brown never identified themselves when they appeared at the front door of her mobile home in Inwood on the afternoon of July 7, 2009, a Tuesday.
But both, in their mid-20s and carrying clipboards, were social workers with the Berkeley County Bureau for Children and Families, the division of the Department of Health and Human Resources charged with providing child protection services.
Carper and Brown were there to see Underwood’s stepdaughter, Maria, they told her.
The 21-year old mother replied that her husband – Travis Harrell, Maria’s father – was not home, and she did not feel comfortable allowing the two strangers in to talk to the 7-year-old since she was not the child’s legal guardian. She said her husband would return in an hour, and asked the two to come back then.
Underwood said that Carper reacted angrily.
“She said, ‘Well, we’ll call the police,’” said Underwood. “I said, ‘Well, I’d rather you do that then.’ And I shut the door.”
Carper called a State Trooper, and told the officer she and Brown thought they could smell marijuana when they came to the door – though no drugs were ever found in the home, and Underwood, who was alone in the house with three children, subsequently passed a drug screen.
After Carper and Brown entered the home with the officer, Underwood and the rest of the family were compliant, according to a report prepared by Brown.
Carper and Brown informed Underwood that they were looking into allegations that her children had been abused and neglected.
The social workers had come to investigate claims made in an anonymous phone call placed to the department earlier that day, alleging Underwood and Harrell were abusing Maria and their other two children, Cara, 2, and Chris, 9 months.
The caller said Maria was forced to do inappropriate chores and to care for her younger siblings, that Underwood refused to feed her and that she had bruises on her legs. The caller said Cara had been dragged across the yard and ‘smacked’ hard during a temper tantrum and that neither Cara nor Chris had diapers.
The allegations were found to be ‘unsubstantiated,’ according to the report prepared by Brown.
The report said both Chris and Cara appeared to be happy children. Asked about her relationship with Underwood, Maria replied, “Mandy is nice to me,” and stated that she had never been hit by either of her parents. The report stated that Underwood “appeared to be a good mother” when the workers had observed her.
“(Maria) reported that no one was ever mean to her at her father’s home,” according to the report, which indicated the risk of abuse or neglect in the home was ‘minimal to low,’ the lowest category of risk in the department’s rating system.
But the report also contained another detail — Chris was overdue for his immunizations.
A missed appointment
When Brown contacted the family doctor, Chris’s medical records showed that he was behind schedule on two rounds of immunizations.
Underwood said she had accidentally missed Chris’s appointment several weeks earlier, and her doctor refused to see her children again until she made payment for the missed appointment. Underwood relied on Medicaid for her children’s medical care, but Medicaid would not pay for the missed appointment.
Underwood said she was saving up to pay the bill and planned to bring Chris up to date on his immunizations once she had saved enough money.
On July 10, three days after Carper and Brown had first come to Underwood’s door, DHHR officials were back. This time, it was to take Maria, Cara and Chris into department custody.
Underwood remembers the scene.
“(All three children were) pulling my shirt, clinging to me, screaming and crying how they didn’t want to leave,” Underwood said. “They just kept dragging them away from me like it wasn’t nothing – just another job for them.”
That same day, 23rd Judicial Circuit Judge John Yoder entered an order granting temporary custody of the children to the DHHR. The order stated that, based on the contents of an abuse and neglect petition filed by the department, the “physical well-being” of the children was in imminent danger, that “all reasonable efforts (had) been made to keep the children in the home,” and that there was no “reasonably available alternative” other than taking the children into custody.
Curiously, the abuse and neglect petition upon which the court based its findings was not filed until July 15 – five days after the children had been taken into custody. A previous abuse and neglect petition had been filed against Harrell and Maria’s biological mother, but it did not contain any allegations about Underwood.
Yoder said he was unable to comment on the case since it involves minors.
Ten days after the children were taken, on July 20, Underwood arrived in court for a preliminary hearing. Both she and Harrell took and passed a drug test.
Kimberley Crockett, the prosecutor representing the DHHR, volunteered to return custody of Cara and Chris to Underwood as long as she agreed to submit to random drug testing and cooperate with the investigation.
Harrell, who had failed a drug test earlier that month, would also have to move out of the home.
Underwood and Harrell agreed to the terms of the ‘safety plan,’ and Yoder ordered the children returned to Underwood’s custody.
But the court order returning custody to Underwood was never filed, the first of three such orders given orally by Yoder that were never filed in this case.
In Berkeley County abuse and neglect cases, court orders are usually prepared by a court-appointed attorney called a guardian ad litem, who is charged with representing the best interests of the children in court proceedings.
Shepherdstown attorney Tracy Weese was the appointed guardian ad litem for Cara, Chris and Maria.
Yoder would later find that Underwood’s case had been “hampered” by Weese’s failure to prepare court orders because it created “confusion” in the handling of the case.
|Reasonable efforts? Check.Richard Wexler, executive director of the National Coalition for Child Protection Reform, an Alexandria-based nonprofit that advocates for Child Protective Services reform on a national level, explained the necessity for the judicial finding that ‘reasonable efforts’ have been made to avoid child removal. Without such a finding, Wexler notes, the state cannot receive federal dollars to subsidize foster care for the child being taken into custody.“Before a judge will approve of taking away a child, the judge has to make certain findings, including the finding that reasonable efforts have been made to try to avoid taking this child away,” Wexler said. “Now, what happens is, instead of a customized hearing to actually look into the matter, it becomes a box you check off on a form.”
Wexler said Underwood’s case highlights how that requirement is undermined.
“What is so striking about this case is that they checked the box that said, ‘The petition shows us that reasonable efforts have been made,’ before they had even seen the petition. That tells you how pro forma it has become to simply rubberstamp requests to remove a child. They simply checked off the ‘reasonable efforts’ box, when obviously they had made no inquiry into whether reasonable efforts had been made because they hadn’t even seen the petition,” Wexler said.
He said there was one obvious ‘reasonable effort’ that could have been made to alleviate the condition of neglect – namely, that Chris was behind on his immunizations.
“For goodness sake. If a child is behind on immunization shots, send a doctor to the home and give the child the shots instead of tormenting the children with years of foster care and then tearing them from their mother forever,” Wexler said.
Underwood says she would have gladly gotten Chris immunized if the financial barrier had been resolved.
“If they would have said, ‘Look, we’ll help you pay the doctor bill,’ I would have went,” she said. “It’s not like I didn’t want to go.”
‘She had no right’
Her children returned to her, Underwood took Chris and Cara home, and Harrell moved out. She lived at home with her children for seven more days. Then on July 27, she got a call from Carper.
“She told me that if I didn’t bring them to her she was going to call the state cops, and I was going to be charged with kidnapping,” Underwood said.
Under threat of criminal charges, Underwood said she took Cara and Chris to the Berkeley County DHHR office, although she couldn’t understand how she could be charged with kidnapping. Carper took the children back into custody.
Two years later, on May 3, 2011, Yoder would issue a finding declaring that the department violated Underwood’s 14th Amendment right to due process when it seized the children a second time, since it had no court order to do so and had never scheduled a preliminary hearing for the court to ratify the seizure of the children.
Yoder also noted that there had never been a finding that the children were in imminent danger – the standard required by law for an emergency taking – while in Underwood’s care.
When the West Virginia Supreme Court of Appeals later denied an appeal by Underwood, the justices brushed off Yoder’s finding of due process violations, saying that “all parties continued to operate as if the DHHR had retained legal custody” and therefore it was “clear from her continued participation in these proceedings that (Underwood) waived any alleged due process violation.”
“I didn’t know she had no right to take my kids,” Underwood said. “When a government official comes to you and tells you this stuff, you just kind of believe them.”
Numerous efforts to reach Carper for comment on the case were unsuccessful.
When Underwood showed up for her next court appearance on Sept. 30, 2009, she had not seen her children since they were taken more than a month earlier.
The department offered her a deal: if she agreed to plead guilty to medical neglect of her children, officials would grant her an “improvement period.” The deal outlined a series of steps she would have to take before she could regain custody of her children. It would also mean that she would get some visitation with Cara and Chris.
“I didn’t think I would get them back if I didn’t plead guilty,” Underwood said. “I pled guilty to medical neglect, but I made sure that everybody understood that I didn’t think I was neglecting my children.”
After Underwood pleaded guilty she was granted the improvement period along with visitation at the department’s discretion.
Carper never allowed her to see her children for more than one hour per week, she said.
|RetaliationIn July 2011, Underwood filed a federal lawsuit against Carper, along with a number of other child protection workers and officials. The lawsuit alleges, among other things, that Carper pushed hard to remove the children in retaliation for the mother asserting her Fourth Amendment right against unreasonable search and seizure.Brown’s report makes special note of Underwood’s unwillingness to let DHHR workers into her home without a warrant or to seize her children without a court order.
“Ms. Underwood was not cooperative with the worker Mary Carper on our initial visit to the home,” noted Brown in his report. “Ms. Underwood was defiant with Ms. Carper when she was notified that the children would have to be removed from the home.”
Wexler argues that retaliation is enabled by a system that wields considerable power without being subject to public scrutiny.
“This mother did something that parents almost never do: stood up to the worker,” Wexler said, adding it is worth speculating “whether this all spiraled out of control simply because the mom did not bow and scrape before the caseworker.”
“Workers … have the power of God,” said Wexler. “Rarely is the power of God accompanied by the wisdom of Solomon.”
“The situation you’ve got here is a system where DHHR has nearly absolute power and operates in nearly absolute secrecy. Any system that operates that way is going to breed extraordinary arrogance,” Wexler said. “Workers too often go in with an ‘I am the law’ attitude, and if you defy them, you wind up in the position this mother is in.”
‘They called me unstable’
Underwood quickly found herself in an impossible world of mutually exclusive demands.
Her improvement period called for her to find and keep a job, but she was also required to call in every morning to find out whether she would have to take a random drug test, which would make her three or more hours late for work. She said she regularly had to drug test between three and five times per week.
Shelly Nicewarner, the social services coordinator for Jefferson, Berkeley and Morgan counties, said department officials are not able to comment on any particular case because they are legally bound to protect the privacy of both children and parents. However, she did agree to answer general questions about department policy.
Nicewarner said the DHHR works with parents to accommodate schedule conflicts.
“If you really are working these hours, then we’re going to make alternate arrangements. We’re certainly not going to put a person in a position to where they will lose employment because we are forcing them to do something,” said Nicewarner.
Nicewarner said the department would not put people in a position that would set them up for failure.
“Why would we attempt to help someone but then make it impossible for them to be able to be successful?” she said.
Underwood said that is exactly what happened.
“I had to call in every day, and then – if it was a drug screening day – I would have to call work and say, ‘Hey, I can’t come in today. I have to go get a drug screen.’”
Underwood got a night job at a gas station so she would be able to take drug tests during the day. However, she first had to complete two weeks of training during daytime hours.
“I called Mary Carper and said, ‘Look. Two weeks training. I have to work seven in the morning until three in the afternoon. I have to do it.’ And she said, ‘I don’t know what to tell you. You have to be at these drug screens.’ So I went to the drug screens, and I lost my job,” Underwood said.
Soon after losing that job, she secured another one doing construction cleanup. She lost that job also because of drug testing conflicts, she said.
“When that happened, they called me ‘unstable.’ They said I couldn’t keep a job,” she said.
Underwood’s inability to keep a job, along with a consequent loss of housing, would figure prominently in the decision to terminate her parental rights.
Nicewarner said it is difficult to believe that it would be impossible to complete an improvement period because case plans are created at a meeting between parents, their lawyers, DHHR officials and prosecutors. The group is called a ‘Multi-Disciplinary Taskforce,’ or MDT.
“All improvement periods are agreed upon by a consensus of everyone. So it’s not like I can come to a parent or an MDT and say, ‘This is what you have to do.’ Because, if I’m telling you that, you have an attorney sitting right beside of you who is going to disagree with it and say to the MDT, ‘This is impossible. Can we make other arrangements?’”
But Underwood said she was never brought to her initial MDT meeting where the terms of her plan were drawn up. She said the first time she heard about her improvement period was when she came into court and agreed to plead guilty.
|Set up to failWexler said that ‘setting up families to fail’ through onerous improvement plans is a common practice in many places throughout the nation.“(They) simply set up so many hoops to jump through that sometimes conflict in terms of their requirements … that it is virtually impossible to meet the demands. And then they go to court and say, ‘Well, the family had this case plan, and they didn’t meet it. So we can terminate parental rights now,’” Wexler said.“The classic example is: you must get and hold a job; and you must visit your child regularly; but the visiting can only be done during working hours,” Wexler said.“There is supposed to be a case plan custom tailored to whatever the family’s actual problem is, but over and over again what you see are cookie-cutter plans. Every plan will include counseling and parent eduction and drug testing – regardless if there is any indication, much less something substantiated, to show that there is a drug problem,” Wexler said. “There is a serious question (in a case where there is no documented drug abuse) whether there should be any drug testing at all.”
“There is also no reason why the drug testing has to be done during working hours, except for agency convenience or to make it harder for the parent.”
Unable to pay the rent on the three-bedroom trailer she was now living alone in, Underwood went back home to live with her mother and stepfather in Berkeley Springs.
She said her children were close with her parents – the family had lived with them for a time – and she hoped living there would satisfy the department’s demand for stability. It did not.
At a hearing on Feb. 18, 2010, Carper testified that Underwood did not “have an appropriate home for her children to come home to.” She said “an unknown caller” had stated that there was “drug use going on in the home.”
Underwood’s lawyer, Nancy Dalby, objected, saying she worried that the case was “snowballing” out of control based on “hearsay.”
That was “just not due process,” she said.
Carper promised a home study would be completed at Underwood’s request.
A home study is an extensive investigation process during which department officials determine whether a home is suitable for children.
Underwood requested a home study, and Yoder granted it.
But the court order was never filed, nor was an earlier order issued by Yoder on Nov. 16, 2009 releasing Underwood from a drug screen requirement.
The home study was first scheduled to take place on March 30, 2010, but Carper called to cancel, citing illness and promising to reschedule. Underwood’s mother, Lori Underwood, kept a log of all the phone calls she made to Carper and her supervisor, Justin Castleman, seeking to reschedule the home study. Her log shows she left eight messages for Carper and spoke with Castleman three times between March 31 and April 14.
By April 22, Underwood’s mother had still not heard back on the home study. In frustration, she wrote a letter of complaint to the department.
“I don’t understand why Ms. Carper will not respond to any of my messages,” wrote Underwood’s mother. “This has caused me and my husband more emotional stress and I think this is very cruel. Ms. Carper got our hopes up and then just ignores us.”
Carper finally called back after Underwood’s mother had written the letter of complaint.
“The very next time I spoke with her, it was like she held a grudge against me. This is only the second time I’ve talked to this woman, and her attitude had done a (180-degree turn). She despised me,” Underwood’s mother said. “The very last words she said to me were: I’m going to set up this home study, but I’m going to make sure these children are not placed with you.”
But Carper never did the home study, which Underwood believes could have helped the court determine whether she could regain custody of her children while living with her family.
Unemployed, convinced the department would never return her children while she was staying with her parents and unable to qualify for many state aid programs without custody of her children, Underwood moved to La Jose, Penn., where she was able to stay with a family for $50 monthly rent.
She contacted local Children and Youth Services to set up a walk-through on the new home, hoping that the Berkeley County DHHR would find it a suitable alternative to her parents’ home. She signed up for parenting classes at a Methodist church, began seeking out men tal health services and signed up for cash assistance and food stamps, all in the hope of satisfying the conditions of her improvement period, she said.
However moving to Pennsylvania also meant she was unable to visit her children regularly, and Underwood missed a number of scheduled visitations that summer and fall.
The DHHR moved to terminate Underwood’s parental rights.
Day in court
Hearings began on May 13, 2010, and went on, at intervals, until Aug. 31. On Nov. 12, Yoder entered an order terminating Underwood’s parental rights.
Yoder’s order focuses on portions of Underwood’s improvement plan that she had failed to fully complete.
He said she had “failed to obtain and maintain stable housing,” had missed visits with her children while living in Pennsylvania, and had not fully completed a parent education program.
“This court seriously questions whether Ms. Underwood can adequately parent these two small children given both her inability to follow through with the terms of her improvement period and her inability to provide for herself,” Yoder wrote.
However, Yoder’s initial order also contained several factual errors that he later took notice of in a second order following a motion to reconsider filed by Underwood on Jan. 14, 2011.
The DHHR — and Yoder’s original decision — stated that she failed to take a court ordered hair follicle drug test on Sept. 30, 2009. However, Underwood had taken the drug test and passed it. She said Carper, her caseworker, personally drove her to the test and then later denied that she took it.
Yoder found that the DHHR’s statement was untrue and even went so far as to formally find that “the mother did not use illegal drugs.”
“The Court does not have sufficient evidence before it to determine if this error was an intentional misstatement or an unintentional mistake by DHHR’s counsel. However, the Court finds that the misstatement was not harmless in that it represents the tone of this proceeding and the lack of trust that increasingly developed between the parties, which this Court believes ultimately poisoned the Mother’s efforts to have her children returned to her,” the order states.
Yoder found that the second taking of the children – allegedly under threat of kidnapping charges – had violated Underwood’s right to due process.
Yoder found that the case was “hampered” by Weese’s failure to draft three separate court orders, and noted that it created “confusion” in the case. Yoder also found that Underwood’s progress in her improvement period had been hampered by Carper’s failure to return her phone calls.
Yoder found that the DHHR had failed to produce several pieces of evidence that might have helped her case, including a report from a substance abuse evaluation that the DHHR said Underwood never took.
Nonetheless, Yoder reaffirmed his decision to terminate her parental rights, though “reluctantly.”
Underwood appealed the decision to the state Supreme Court.
The court refused to hear oral arguments in the case, issuing a brief ‘memorandum decision’ in which it dismissed the violations of due process, saying that Yoder had not returned legal custody to Underwood, though he had ruled that he did. The court also reasserted the claim that Underwood had “failed to complete required substance abuse and psychological evaluations,” though a report from Eastridge Health Systems dated Oct. 10. 2009 – the one Yoder noted the DHHR had failed to provide during discovery – shows she did.
Underwood filed a petition for a writ of habeas corpus, seeking to force the state to prove it had the legal right to keep the children in its custody since they had been taken in violation of the 14th Amendment.
The State Supreme Court denied the petition summarily, without any explanation for its decision.
In July 2011, Underwood filed a federal lawsuit against the DHHR, Carper, Castleman, Nicewarner and several other department officials. The complaint alleges that they violated her Fourth and Fourteenth Amendment rights and the West Virginia Constitution. It also alleges that the actions in her case are part of an ongoing pattern of similar abuses.
The DHHR filed a motion to dismiss the case in December, arguing that federal courts do not have jurisdiction over the case. The court has yet to rule on the motion. A trial is set to be held in December, 2012, more than 3 1/2 years after the children were first taken into custody.
|A losing battle
Appeals on cases involving termination of parental rights have a very low success rate at the West Virgnina Supreme Court. Since the beginning of 2011, the court has reviewed 154 cases involving termination of parental rights. It agreed to hear oral arguments in only four of those cases.In two of the cases in which the justices heard oral arguments, the Supreme Court reversed circuit court rulings and terminated parental rights. In a third, the court reinstated parental rights subject to further review by the circuit court, because the judge had not sought out the child’s opinion on the termination.In the final case, the Supreme Court overruled a Mingo County judge who had terminated the parental rights of a father – who had only learned he was the child’s father through a DNA test done after abuse proceedings had begun – even though there had never been any allegations that he had abused or neglected his children.In the remaining 150 cases, the court issued brief rulings called ‘Memorandum Decisions.’ Oral arguments are not heard in these cases. The decisions are typically only two to five pages long and usually devote only one to three paragraphs to the facts of the case. Much of the text in the decisions is identical from case to case.The decision in Underwood’s 2011 Supreme Court appeal was one of these 150 memorandum decisions
After her parental rights were terminated, Underwood reunited with her husband and moved to Ranson. She and Harrell say the ordeal has left them in lasting pain and turmoil.
“It’s been hell… We were a really happy family. We didn’t have much money, but we were happy,” Underwood said.
“We have pictures of them everywhere, and it’s hard,” Underwood said. “I can’t sleep at night. Ever since this happened I have been on medication to sleep. I have to take sleeping pills at night because, if I don’t, when I lay down in bed all I think about is my kids and how I don’t get to see their faces.”
“They pretty much just came in and screwed up things,” Harrell said. “Everything was fine with our family and then they come in and she’s got all these problems and they tell her to go see the doctor. She wasn’t taking drugs, but now they’re prescribing her drugs to deal with the problems that they have caused.”
Underwood gave birth to a daughter, Ameliyah, on March 14, 2011.
Because her parental rights to Cara and Chris had been terminated, a case was automatically opened with DHHR. She says her previous experience with the department has left her fearful and distrustful.
“We don’t trust anybody,” she said. “We are so scared that they are just going to take her for no reason. Anybody who doesn’t like you can call in on you. They will start a case on you for no reason, just some allegations with nothing behind them.”
Underwood and Harrell said they suspect the original anonymous phone call placed to DHHR was an act of retaliation.
So far, said Harrell, Jefferson County DHHR officials have been fairer and more helpful than those they dealt with in their previous case.
“We’ve been dealing with the DHHR here in Jefferson County, and it has been the complete opposite of how it was going on in Berkeley County,” Harrell said.
Underwood said they had been made a part of the MDT process and have had an active hand in producing their safety plan.
“We got to be a part of it this time,” Underwood said. “It does (make a big difference) because, if we can’t make an appointment or if (Harrell) has to work or something, we can let them know that right there that it will be a problem.”
Underwood said she is looking forward to the federal court case. She said she would not be willing to accept a settlement. She wants a trial.
“We were wronged. This stuff should have never happened,” Underwood said. “How do you replace the three years you’ve lost of your kids lives? You can’t. These are my kids. These are my life.”