By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
Mary would like to show her 8-year-old daughter, Hope, how to use the machine someday, if Arizona child-welfare authorities would only let her.
Mary is living these days in a comfortable Phoenix home with Harold, whom she married 17 months ago. It rarely has been this good, this safe for Mary, a diminutive 47-year-old. Her face, lined and world-weary, tells of an exceedingly difficult life.
Some lowlights: Daughter of alcoholics whose father beat her often. Lived in a group home from the ages of 10 to 14. Raped at 16 by a family acquaintance. Married at 18 to another physically abusive man. Gave up her first-born to adoption--she says she did so to free the girl, then 6, from the violent surroundings in which Mary felt trapped. Left to fend for herself in 1990 after Hope and older daughter Jessica's father died, six weeks after Hope's birth.
Mary fetches a school photograph of Hope from a living-room mantle. Taken a few years ago, it depicts a pretty little blond girl with a toothy smile. She also shows off a homecoming dance photo of Jessica, now almost 18.
Mary hasn't seen either daughter in person since February 24, 1998, during an emotional meeting at a Phoenix social-service agency. That meeting occurred as the state was taking final steps to sever Mary's parental rights to Hope.
It's a mother's worst fear.
Arizona's Child Protective Services (CPS) agency had taken the girls--then 4 and 13--in May 1995. It happened days after Phoenix police responded to complaints that Mary, then a single mother, had been neglecting them.
Police reports say Hope had been wandering unattended around an apartment complex on West McDowell Road, while Jessica was selling candy door-to-door. The landlord let the police into Mary's apartment, a disaster zone.
A police report said several white rats--apparently the "docile" kind available at pet stores--were out of their cages and moving about the filthy abode. The report added, however, that "both girls were very clean and in good health."
Officers spoke with Mary after she returned from playing bingo that evening. She denied neglecting the children and refused to admit that her apartment, from which she was about to be evicted, was a mess.
An officer returned to the apartment a few days later, after which he wrote, "There was nothing noted that would pose an immediate health or safety risk. The children appeared healthy, clean, well-nourished and happy . . ."
The officers notified CPS of their visits, but the state agency didn't respond for a few weeks. In the meantime, police learned Mary had outstanding warrants on two shoplifting charges for which she hadn't appeared in court.
CPS finally got involved. Its investigation showed Jessica hadn't been to school for months. Agency files also contained substantiated 1993 allegations that Mary had left her children unattended for hours at a time.
Authorities placed the girls in emergency shelters, as Mary served five days in the county jail on the shoplifting charges. After her release, Mary relied on the kindness of friends for lodging.
Mary hadn't physically abused her daughters. And, despite allegations from a key CPS witness at the spring 1998 trial to determine if she'd permanently lose custody of Hope, no evidence has linked Mary to substance abuse. (Most neglect cases involve parental drug or alcohol problems.)
CPS originally planned to return Mary's daughters to her if she successfully completed several tasks. They included finding a job, finding an adequate residence and taking "parenting classes."
Though Mary did all of the above, CPS decided in November 1996 to get a judge's permission to sever Hope from Mary, and see that Hope was adopted by a worthy family.
CPS made its decision after a psychologist under contract with the agency said Mary was suffering from a mood disorder called dysthymia. The chronic malady causes her to become depressed, suffer insomnia, have low self-esteem, become indecisive and feel hopeless.
That psychologist recommended that Mary ask a mental-health agency to provide treatment. That agency--then called ComCare--agreed that Mary was seriously mentally ill, which qualified her for free, if limited, psychiatric services.
No one claims Mary was a model mother before CPS took her daughters. But even the state's attorney who sought to strip Mary's children from her permanently said during her trial:
"This isn't a case about a person who is a bad person or an evil person or a mean person. Unfortunately, this is a case where an individual suffers from a personality disorder. . . . In spite of Mary's efforts, and in spite of what she perceives to be best for her children, she is unable to adequately parent her children. . . . There is no real hope for her."
Judge Kenneth Fields agreed with CPS in an April 1998 ruling, severing Mary C.'s parental rights.
But CPS botched Mary's case badly, according to a stunning January 19, 1999, Arizona Court of Appeals ruling that reversed Judge Fields' decision.
The appellate court said the state had done a dreadful job of fulfilling its duty to give Mary a proper opportunity to get her children back.
Wrote judge Noel Fidel in the court's 3-0 opinion:
"While critical months stretched into years of out-of-home placement for [Hope], the state made only a negligible effort to provide rehabilitative services to her needy mother. . . . [CPS's] effort [w]as belated, fitful and indifferent."
Though CPS case managers work in a bureaucracy, their analytical processes tend more toward art than science. Good artists incorporate intuition and life experiences into their work, and most decisions made by case managers--especially more experienced ones--are sound.
How, then, to explain what went wrong in Mary C.'s case?
State officials are barred from discussing specific child-welfare cases. But trial testimony and other records show that CPS didn't make "reasonable efforts"--by any stretch of the definition--to reunite the troubled biological mother with her children.
Perhaps most galling, according to Judge Fidel, is the price Hope is paying for CPS's incompetence in this case. Her foster parents--excellent care givers by all accounts--long have expressed a desire to adopt her. (Jessica resides in another foster home as she nears her 18th birthday, at which time guardianship will become moot.)
Fidel wrote that Hope would be best served if her foster parents did adopt her, but that CPS had broken the law by barely trying to reunite Hope and Mary.
The appellate court shipped the case back to juvenile court, where the goal again is to reunify mother and daughter.
The case illuminates the difficult decisions that Arizona's overburdened child-welfare officials routinely face. Among other critical duties, they often must ask judges to sever a biological parent's rights.
CPS says that it expects Arizona judges will have terminated parental rights of almost 700 parents during the fiscal year that ends June 30.
"I done everything they wanted me to do, and I still lost," Mary says in a twang that betrays her Oklahoma roots. "I got a job, and I got a place, just like they wanted me to, and they still took my kids. I've had problems. It's always been hard for me to get people to understand what I'm really feelin'. But I've always loved my daughters."
The question was, could she properly take care of them?
Here's the dilemma in a nutshell:
It makes sense for child-welfare systems to decide as soon as possible where a dependent child should permanently reside. Developmentally, a year in a child's life means far more than it does for an adult.
But the law says parents also deserve time to make the necessary changes to get their kids back.
The government's balancing act is often precarious. When to finally sever a parent's rights can be one of the hardest calls that agencies such as CPS must make.
An earlier New Times story ("The Family Trap," May 11, 1994) concluded that too often the state was reunifying children with parents who were unfit guardians.
Arizona's reunification efforts stemmed from the federally mandated policy of "family preservation." For years, the feds provided strong financial incentives for states to put dependent children into long-term foster care, as wayward parents tried, seemingly interminably, to repair themselves.
Things are different now.
Bill Clinton signed the 1997 Adoption and Safe Families Act (ASFA), which mandates speeding up things as much as possible. A cornerstone of ASFA is whether biological parents can become fit in time to meet their child's needs.
The new law makes it easier for states to quickly sever parental rights. By encouraging adoptions, it also is designed to decrease the number of kids languishing in foster homes--more than 500,000 nationwide, according to the feds.
ASFA dangles bonuses of up to $6,000 to states for each foster child who is adopted. (Arizona lawmakers passed their own version of ASFA last year. Most of the federal provisions are now also in effect on the state level.)
Another byproduct of the new law, say attorneys on both sides of the fence, is the added pressure on caseworkers, parents and attorneys.
"It takes time for many parents to accept that they have a problem before they can start to work on it," says Mary C.'s veteran Phoenix attorney, Michael Kranitz. "And there are going to be natural delays all along, such as waiting for psychological evaluations to come in. The time limits put a tremendous strain on everyone."
The law was supposed to eliminate the misperception that "reasonable efforts" to reunify a family must go on forever. It also specified situations--including violent acts against a child--where reunification efforts no longer are required.
But ASFA created confusion because it didn't change the requirement that the government must try to reunify families when a child isn't in peril.
"We talked about family reunification about four or five years ago as our official goal," says Mary Alt, program administrator for the DES's Child, Youth and Families division. "But I contend that child safety has always been the underlying concern of our case managers. The main thing that the new federal law does is confirm that child health and safety are paramount."
ASFA won political favor in the wake of news of egregious cases in which family "preservation" proved disastrous.
"In the most extreme cases, the criticism [of reunification] is well-founded," authors Mark Hardin and Robert Lancour wrote in a 1996 book titled Early Termination of Parental Rights.
"[But] pursuing reunification services in extreme cases is self-defeating in other ways as well. Time, money and human resources are expended on programs which cannot be effective.
"Chronic abusers, long-term schizophrenic parents, and others drain resources when receiving futile rehabilitative services before their children can be freed for adoption. At the same time, agency staff is demoralized by having to pursue obviously futile efforts."
The authors warn "the incapacity must be so severe that the parent is incapable of providing minimally acceptable care for the child."
CPS's responsibilities are daunting, says Noreen Sharp, chief of the attorney general's Child and Family Protection division, which represents CPS: "Next to capital punishment, it's the most profound act we ask a court to order--the severance of a basic bond."
Speaking generally, Sharp adds, "That someone is mentally ill, doesn't mean they can't keep their children, or a job or whatever. It's whether the person can parent responsibly."
Mary C. would like to forget the days after CPS took Hope and Jessica in mid-1995.
"It was pretty bad," she recalls. "I didn't have nowhere to go. Couldn't sleep, I was all alone, I was mad at everyone and at myself. I missed my kids bad."
Mary has been estranged from her own parents and siblings for years. She had no job. Welfare was her only source of income. Evicted from her apartment, she relied on friends to provide temporary lodging.
"Didn't have a place to go sometimes," she says. "I wasn't sure how to deal with anything."
Dealing with CPS isn't easy, even for those blessed with mental health.
Mary C. is mentally ill.
As in all but the worst cases, CPS's initial case goal was to return the girls to Mary. Hope was staying at a Phoenix crisis nursery, and older sister Jessica was in a group home for teenage girls.
Sporadically at first, Mary remained in touch with her children, by phone and in-person visits. She was staying here and there, at friends' homes, at shelters, occasionally on the streets.
In September 1995, a psychologist who met briefly with Mary wrote, "Is inadequate parenting due to failure or inability to establish attachment with children? Or SMI (seriously mentally ill), or substance abuse?"
He urged CPS to promptly conduct a complete psychological evaluation. But Mary wouldn't have one for another 10 months.
That month, CPS found a foster home for Hope--the one she's in now. She was just starting kindergarten, and reports indicated that she was doing reasonably well. Jessica still was in a group home.
In November 1995, the psychologist recommended that CPS send Mary to a "program for homeless women in obtaining work and regaining financial footing. . . . [Mary was] advised to make appointment with case manager to discuss services and how [she] can access them."
The last remark was telling.
Mary's CPS case plan had been in effect for six months, but the agency hadn't provided any guidance that may have improved her lot or state of mind.
In December 1995, the state Foster Care Review Board recommended that CPS give Mary a strict time line of tasks to complete before reunifying her and the girls. If not, severing her parental rights was the next alternative.
Time was slipping away. Mary couldn't find a job and still had no stable address. A day before the first anniversary that CPS had taken Hope and Jessica, the Foster Care Review Board noted "that services have not yet been implemented" for Mary.
Finally, in June 1996--more than a year after Mary had lost her kids--psychologist Armando Bencomo evaluated her for CPS.
He quoted Mary as saying, "I keep thinking, why can't I get out of this slump I'm in? Why won't anybody give me a job? . . . Just lately I have been losing control when I'm just sitting alone. I also hit myself in the face and I don't know why. . . . I grind my fist into my face until I feel the pain, like I feel that this is what they're doing to me."
Bencomo wrote that Mary was severely depressed and suffered from a post-traumatic stress disorder due to extensive abuse by her father, husband and boyfriends.
"This client is poorly equipped to function independently, much less to take care of a child," he wrote after meeting with Mary once. "She needs intensive mental health services . . ."
Bencomo said he doubted Mary could sufficiently heal to get her children back in less than a year.
But he added, "Intensive psychiatric services might turn Mary around sooner than I expect, so you may wish to wait another six months before changing the case plan [to severance], in order to see if she avails herself of services and improves in her emotional and social adjustment."
But CPS didn't point Mary to "intensive psychiatric services." In fact, records indicate that her case manager didn't direct Mary to ComCare for three more months. ComCare's typical services could not be called "intensive," but would have been better than what she was getting--nothing.
By this time, Mary also was taking parenting classes through Westside Social Services.
"Mary continues to be appropriate during class," a social worker there noted in the fall of 1996, "and has become more assertive, positive and willing to work on her issues."
But progress was slow. Mary told the social worker that she'd been looking hard for work--she had copies of job applications to prove it--but no one would hire her. And she still had no permanent residence, which also depressed her.
In October 1996, psychologist Glenn Moe filed a report with CPS about his meetings with Hope, then 6 and in foster care for 18 months. Moe asked the child what the best thing was about her mother, leaving the question open-ended.
"She indicated the best thing about her mother was that she had 'two moms,'" Moe reported. "She indicated that both were best."
That month, ComCare approved her for services as a "seriously mentally ill" client. She signed a release-of-information form so ComCare could forward her progress reports and other information to CPS.
Such information surely would have been helpful to CPS in its decision-making process. But CPS never bothered to get Mary's ComCare records.
In early November 1996, CPS informed Mary that it had switched its case plan from "return to parent" to "severance and adoption." It would be months, however, before the agency would ask a judge to formally sever Mary's parental rights to Hope.
Ironically, things were starting to look up for Mary. In January 1997, she found her first job in years, as a full-time waitress at a Denny's. There, she met her future husband, a widower in his 50s who works as a handyman.
A month later, the AG's office filed a petition with Juvenile Court to terminate Mary C.'s parental rights.
Though Mary seemed to be doing better, it wasn't necessarily because of ComCare. The agency's financial woes had forced it to severely cut services it was supposed to provide to Mary and thousands of other Maricopa County residents.
"The Board observes that ComCare is not providing services for this family that . . . still has need of services," the Foster Care Review Board reported in May 1997. "The board commends [Mary] for holding a job and continuing her counseling, and visits with the children. The board recommends that all seriously mentally ill services be reinstituted as soon as possible."
By this time, Mary was living with Harold at his parents' home, and they had set a wedding date for that fall.
The decisive blow to Mary's reunification hopes came in October 1997, when Dr. David Young evaluated her for CPS.
"Considering the longevity and persistent pattern of behavior and poor judgment," the psychologist concluded, "Mary's difficulties are likely to be chronic and not amenable to change in the foreseeable future. . . . I cannot conceive of any additional services, interventions or treatment that would be of help to Mary in improving her parenting skills, nor improve her emotional stability."
He added: "Mary has had a series of problems with drugs which appear to be minimized by her report. . . . She has had many episodes of depression. She has also had feelings of emptiness which she seems to solve by moving onto another relationship, or moving into drug abuse."
It's uncertain where Young came up with the information about the alleged drug abuse. But that and his other conclusions would weigh heavily against Mary during her severance trial.
It was the state of Arizona's burden at Mary C.'s trial in the spring of 1998 to prove that her parental rights to Hope should be severed.
By then, Hope was 7 years old, and Jessica was 16. They hadn't lived with their biological mother for almost three years.
Assistant attorney general Robert Rosanelli's first witness was psychologist David Young.
Young conceded that Mary's dysthymia was "not to the point where it's incapacitating." He said Mary had been functioning "at the moderate to mild range at the moment when I saw her. . . . She seemed to be not having major problems in the area [of dysthymia]."
Still, he reiterated, "It's my opinion that this disorder and how she handles her problems are having a significant negative impact upon her parenting of a child . . ."
Mary's attorney, Michael Kranitz, asked Young about the reference in his evaluation to her alleged drug abuse.
"I think she's denied drug problems in the past," the psychologist replied.
"Do you have any evidence or information from CPS that says that she has a drug problem?"
Young said that "seeking treatment and participating in treatment is not in itself either a guarantee that the person has improved, nor is it a demonstration that it has not worked either. So it depends on the reports that were received concerning the progress."
Kranitz asked Young if he'd gotten such reports from ComCare before drawing any conclusions.
Young said he was unaware that Mary and her new husband had bought a nice home, that she had a job and had been getting counseling and medication from ComCare.
"It's not uncommon for a parent to work very hard prior to a severance trial," he testified. ". . . She [had] indicated to me that she was not in treatment. She had not followed through with employment requirements that were made of her."
CPS case manager Sue Weil testified that she'd started on the case in 1996, about six months after the agency had taken Mary's two children. She said that Mary had made progress on her watch, "but not very much in regards to stabilizing her lifestyle. Specifically, somewhere to live and her mental health . . ."
Weil said she'd prompted Mary to call ComCare after getting Dr. Bencomo's evaluation. Kranitz asked her if Mary had improved after ComCare doctors prescribed medication.
"At the start of the counseling, no," she said. "It was more gradual with the start of the medication. There was a change in her effect, her verbalizations. She wasn't as defensive or hopeless, yes."
"And," Kranitz asked, "the job that she eventually found was not anything to your knowledge that had been referred to her by anybody at [CPS]?"
"No, she found it herself."
Weil admitted that CPS had done little for Mary until almost a year after the agency had taken the children.
"Is . . . a year's break in seeking the things that you were requesting her to do a reasonable policy?" Kranitz asked.
"I cannot testify as to why services were not started prior to the time I got the case," Weil replied.
Kranitz moved into another area.
"During the time that you had the case, and you had an opportunity to observe [Hope] with my client, did there appear to be a bond there?"
"A bond, yes, they knew each other."
"Loved each other?"
"She knew her as her mother."
"Loved each other?"
"There was affection, yes. . . . The child always had love and concern for the mother. Nobody is denying that. That was never part of the decision to file for severance."
"The decision was that she was not making sufficiently fast progress?"
"Yes, the decision was her ability to parent."
The state also called Joan Johnson, who had become Mary's CPS case manager in August 1997. She said she'd spent little time with Mary herself in the eight months since then, hadn't interviewed Mary's new husband or visited her new home.
"I don't think that's the issue," Johnson testified. "The evaluating people have made recommendations as team members, helping us make this decision. And I don't think the home is necessarily an issue. It's her ability to parent, and I think that's been evaluated clinically. . . . I don't deny that it's probably a very minimally adequate home as far as I know."
Mary C. first took the witness stand on April 10, 1998.
She told assistant AG Rosanelli that she was getting treated for depression and was taking medication that helped her sleep.
"Do you feel that CPS has been unfair to you in any way?" Rosanelli asked her.
"They told me one thing, and they did another," Mary replied. "Like they tell me if I got a place, I found myself back-up, you know, if I could have a job, and I could keep it, and I was capable of taking care of the kids . . . that they would give them back."
Kranitz asked Mary why she was battling to regain custody of Hope.
"Because I happen to love her very deeply," Mary said. "And since I am her biological mom, I know more about her than I think anybody else could know about her. . ."
In closing, Rosanelli concluded that "this is really about her mental illness and really about a lady who unfortunately is inflicted by this long-standing chronic disorder. It's not going to go away and unfortunately, she will never be able to parent."
Countered Kranitz: "From the time Mary sought and got ComCare's help [in October 1996], she has been in a stable home, stable living situation, has done everything requested of her. . . . If her condition was such as they are arguing today, then, by golly, they should have had her in ComCare immediately. And yet a year and a month passed before she had a psychological evaluation."
Judge Fields didn't bite, which wasn't surprising. Though juvenile court doesn't keep statistics, an informal survey of attorneys indicates that judges side with CPS in the vast majority of severance cases.
On April 21, 1998, Fields terminated Mary's parental rights to Hope.
Michael Kranitz told Mary to expect the worst when her case went to the Arizona Court of Appeals. He's well aware that appellate courts generally are loathe to upend the rulings of trial judges in dependency cases.
Attorney Carol Coghlan handled the appeal for Mary.
"What is glaringly apparent is that the record contains no evidence that mental health treatment services designed to address the reasons for the child's removal from Mary's care were offered to [her] by [CPS] or any other agency, including ComCare." (Emphasis Coghlan's.)
Mary tried to stay afloat as she awaited word of her appeal's outcome. But her depression deepened as weeks turned into months.
"I'd be thinking, 'Why'd you go through all this? You're never gonna get back your kids no matter what.' Well, I did it, because I felt in my heart that it was the right thing to do--for me and for my kids."
In late January, attorney Coghlan called Mary at work--she's now working part-time at a little cafe--and gave her the good news. The court had sided with her against CPS.
From the court's unanimous opinion:
"CPS offered Mary no significant reunification services for almost a year after removing [Hope] from her care. It waited more than a year after removing the child before referring a mother with a serious mental illness for a psychological evaluation and did not steer her to ComCare for treatment until three months more had passed.
"As for steering Mary to ComCare, which was the sum total of CPS's response to Dr Bencomo's recommendation of intensive psychiatric services, CPS gave Mary a phone number, encouraged her to self-refer, and never followed up sufficiently to secure ComCare records of her progress."
Says Mary about the surprising reversal of fortunes, "I felt a kind of happy like I'd never felt before. I'm in better shape than I used to be. I know there will be a lot of stuff to work out. [Hope] still has a delicate mind, and all this comin' and goin'. . ."
Mary C. knows it will be a while before she and Hope are reunited, and that the revised CPS case plan gives no time table.
At first, according to the plan, visitation between mother and daughter "will be based on the recommendations from the psychologist evaluating [Hope]. . . . Mary will participate in counseling to assist her in dealing with her stress and feelings, after what has and what will evolve in this case."
There's also the matter of Mary's broken relationship with her older daughter, Jessica.
"I know she's mad at me for all the stuff that's gone on," Mary says, "and I respect her for what she feels. I can understand it. Maybe she'll give me a chance someday."
Mary's thick CPS file includes a troubling new note of a few weeks ago. It indicates that someone told Hope before the Court of Appeals decision that she was going to be adopted.
"[Hope] has not been told anything about the change in circumstances, as of yet," the note says. "Guidance from the psychologist will be obtained so this is handled in the best possible manner."
Translation: Someone is going to have to explain to a little girl why she's not going to be adopted after all, and why she may be going back to live with her "real" mom.
Editor's note: The names of children have been changed to protect
their identities. Mary C's full name is not disclosed for the same reason.