Mother to learn fate of DHHR case

RANSON – An area woman will soon learn whether she will be granted a day in court to challenge the constitutionality of a West Virginia child protective services’ decision that caused her to lose custody of two of her children.

Amanda Underwood’s two children were seized by Berkeley County Child Protective Services workers in 2009 after she pleaded guilty to medical neglect for falling behind on one of her children’s immunizations.

Underwood missed an appointment and was working at the time to save money to pay for the missed appointment, which Medicaid would not cover.

She also failed to complete a required improvement period.

Underwood’s parental rights were terminated by 23rd Circuit Judge John Yoder in January 2011.

Amanda Underwood

Amanda Underwood

As part of his ruling, Yoder noted that DHHR had violated her due process rights, had failed to turn over exculpatory evidence during discovery and had made untrue statements to the court – though he did not rule on whether these had been intentional or accidental.

The West Virginia Supreme Court of Appeals subsequently overruled Yoder’s findings in a short “memorandum decision” during which justices did not hear oral arguments.

Underwood filed suit against the DHHR last July, alleging that the state’s Child Protective Services system was unconstitutional because it creates a high risk of errors in court proceedings that could, as she argues happened in her case, lead to violations of several constitutional rights.

DHHR moved to have the case dismissed in Dec. 2011. Southern District Court Judge Joseph Goodwin dismissed Underwood’s claim seeking an injunction and a declaratory judgement that would have returned her children to her based on the “Rooker-Feldman Doctrine,” which prevents state court decisions from being appealed in federal courts.

Goodwin refused to dismiss the rest of Underwood’s claims, however.

These include the allegation that the DHHR and its employees violated her 4th Amendment right protecting her from illegal search and seizure, that they violated her 14th Amendment right preserving her right to due process, that the agency is in violation of a 1984 consent decree which provides strong limits and guidelines in cases of child removal, that it committed negligent, wanton, reckless and malicious infliction of emotional distress by its mishandling of the case, and that the state’s abuse and neglect laws create such a high risk of legal error that they are unconstitutional.

Since that time, a flurry of motions and answers have been filed, including additional summary judgment motions by both Underwood and the DHHR, and motions by the DHHR to have the entire case sealed from public and media scrutiny.

The DHHR has also filed motions to sanction Underwood’s attorney, Nancy Dalby, for filing confidential information with insufficient redactions. One such filing included an official letter reprimanding Mary Carper, the DHHR social worker assigned to Underwood’s case, for screaming profanities at a superior when a client called the superior to complain. That letter warns that Carper could be fired if she again failed to follow DHHR policy.

Goodwin dismissed all of the DHHR’s motions to seal the case, saying the requests were not supported by case law, and that the DHHR had failed to work with Underwood’s lawyers to produce lightly redacted versions of its own filings.

The trial was set to begin Tuesday but has been continued because of a large number of pending motions that could decide the outcome of the case ahead of the trial. Most important among these are several motions filed by the DHHR to dismiss the case by summary judgment and motions filed by Underwood to find in her favor by summary judgment.

Dalby said she and Underwood are also considering whether to add new complaints given a new piece of evidence that was only recently turned over to them. “We do plan on asking leave to amend our complaint based on newly discovered evidence that was not provided to us until recently that raises new claims,” Dalby said.

This new evidence includes the second half of the transcript of the hearing during which Yoder ordered the children be removed from the home.

The transcript reveals that Yoder ordered the seizure based on a positive drug screen from Travis Harrell, Underwood’s husband. However, no testimony was presented about Underwood presenting a danger to her children. In fact, the transcript demonstrates that neither the prosecutor, Kimberly Crockett, the guardian ad litem, Tracy Weese, nor Judge Yoder knew either Underwood’s or her children’s names.

“I hope that the court will agree to look at these issues and rule on whether what happened to my client was constitutionally sufficient, and also whether there are issues such as fraud or willful disregard for my client’s rights that went on with particular caseworkers,” Dalby said.

Underwood says she is filled with anxiety as the possible trial date approaches, but she wants to see the government officials who she said violated her rights to account for their actions.

“I want it to be to where they can’t do this to anybody else, like they did to me,” she said. “I think when I have a jury of my peers – moms and dads who kind of understand what it would be like if somebody walked through your front door and took your kid – if they can hear my story they will understand what it’s like.”

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