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Mother, interrupted: CPS accused her of everything from neglect to excessive care, never proved anything, and took her daughter anyway

Brian Stauffer

On a cool winter day, late afternoon casts a creepy, lonely light across a little girl's bedroom. Madeline sits waiting for a tea party. A row of Disney princesses lines a bed that's never been slept in.

Carol Dunlavy spends a lot of time alone in here, one of two bedrooms in an apartment in north Scottsdale. Sometimes she cleans. Sometimes she brings in a magazine and reads. Sometimes she just sits.

It's been more than five months since Dunlavy lost custody of Sarah, her 2-year-old daughter. She stopped counting at 134 days.

"I couldn't keep doing it because every time I woke up I would think, 'There's another day,'" she says. "I'd watch the clock for hours until it got to 8:30 and I knew she'd be getting down to sleep."

She tries not to watch the clock during the two hours a week she now gets with Sarah, visits held not at home but at the food court at Arrowhead Mall, halfway between her apartment and Sarah's father's home.

Child Protective Services took Sarah (not her real name) away after doctors suggested that Dunlavy might suffer from Munchausen Syndrome by Proxy, an incredibly rare and fascinating psychological condition in which an adult makes a child sick — often leading to invasive procedures on the child — in order to get attention from medical personnel.

It's the kind of case you'd see on a Law & Order rerun, a mother sneaking into her baby's hospital room late at night to inject an IV with poison, then standing by, showing concern, as doctors and nurses swarm. But it's not the kind of case doctors see very often in real life, and it's almost impossible to diagnose.

And in this case, CPS didn't do even the bare minimum it would have required to prove Dunlavy had Munchausen Syndrome by Proxy — or, for that matter, that she was putting her child in harm's way at all.

In Sarah's situation, the concern began with feeding problems she developed when she was 8 months old. Instead of medical procedures, Sarah had many hours each week of therapy, much of it provided by the state's Department of Developmental Disabilities. In the end, CPS (both DDD and CPS come under the umbrella of the state's Department of Economic Security) said doctors claimed Dunlavy was trying to get a feeding tube surgically inserted in her daughter's stomach. In fact, medical records document that Dunlavy was adamant the tube was not necessary.

A pediatrician who'd spent just 20 minutes with Sarah and Dunlavy was the one who first suggested Munchausen Syndrome by Proxy. His colleagues ran with it. So did CPS.

When CPS came to Dunlavy's door to let her know they were taking Sarah away, they didn't have all the answers. That's not surprising, and technically, it's okay. When she took office, Governor Janet Napolitano made CPS a priority, and her mandate was — and is — to put the child's rights ahead of the parent's. Take the child first, ask questions later.

But later never happened.

The most basic questions still weren't answered, yet Carol Dunlavy lost custody of her daughter. Permanently.

The case was dismissed in January. No criminal charges were ever filed against Carol Dunlavy. But still, Sarah was sent to live with a father she barely knew, and Dunlavy never got her day in court.

While they didn't follow their protocol, CPS was obviously determined to get Dunlavy — for something. The charges against her changed four times in 10 weeks, from neglect (although Munchausen Syndrome by Proxy was suspected from the beginning) to MSBP to mental illness and, finally, "excessive care."

In the end, Dunlavy's greatest sin appears to be a lie she told long before Sarah was conceived, to a guy she was trying to impress. She'd claimed to have a degree in psychology (often, those who suffer from Munchausen Syndrome by Proxy are medical personnel).

Dunlavy and her attorney, Jennifer Morse, a former assistant attorney general who represented CPS for five years and is now in private practice, agreed to tell their story to New Times.

New Times is not naming Sarah's father, in order to protect the child's identity; the two share a surname. He did not respond to a letter asking for his comment. His attorney did not return a phone call or e-mail asking for comment.

CPS officials also refused to comment, citing confidentiality, although there is a law on the books that allows them to weigh in if a case has already been made public. Lauren Lowe, the assistant attorney general in the case, declined comment, as did Phoenix Children's Hospital and other doctors and therapists contacted for this story. And juvenile court proceedings are secret.

New Times did obtain hundreds of pages of documents — including Sarah's medical records from birth until her removal from Dunlavy's custody — as well as CPS and court documents.

 

The voluminous records in this case speak for themselves, and what they say is that CPS violated its own policies every step of the way:

• The agency never interviewed all Sarah's doctors and therapists from birth, and no one from the state interviewed Dunlavy until the middle of January, three months after Sarah had been taken.

• No one ever interviewed Dunlavy's family and friends, although that's required, too.

• CPS also dragged its heels on getting access to Sarah's medical records; it took the agency two months to get them.

• CPS never consulted a Munchausen Syndrome by Proxy expert. According to the agency's policy, an expert must be included in all critical decisions in the case, including the initial accusation and the removal of the child, and must be able to review the child's medical records from birth.

Phoenix Children's Hospital has some questions to answer, too. Although the hospital's final report on Sarah stated no feeding problems were ever observed in the child during her stay there (which would have been a key indication that Dunlavy was fabricating symptoms), the medical record states otherwise — time after time — in notes taken by PCH doctors and nurses. And while the medical records clearly show that Dunlavy repeatedly refused to allow a surgically placed feeding tube, PCH said she wanted it — another damning sign.

Then there's the court system. Dunlavy never received a hearing in the matter, and she still lost her parental rights.

Attorney Jennifer Morse was shocked. She was even more surprised that the court never called out CPS and Lowe, the assistant AG on the case. (Lowe passed the Bar exam in 2005; part of the problem, Morse guesses, is a lack of experience.) In any case, Morse worries the case sets a precedent for CPS' intervention in basic decisions that parents have a right to make about their kids.

"It's very subjective, how a parent views their child. For a new parent, a child with a 104-degree fever might be dying. For someone with a couple kids, they're not worried," she says. "Neither is better than the other."

But in this case, the state issued orders against a mother because of the medical decisions she made for her daughter. And it did so without the full story.

"The consequences for CPS are really dire," Morse adds. "The idea that CPS can go in and decide which parent they like better, it's really scary."


Carol Dunlavy was a young divorcée from Glasgow, Scotland — sweet-natured, with pretty blond hair and big, blue eyes — when she met the man who would eventually be Sarah's father.

The two met in the Valley. Dunlavy had moved here with her first husband. She was immediately impressed by her new boyfriend's upbringing and what she saw as his high-status career as a veterinary surgeon.

Dunlavy comes from a blue-collar, suburban family. Her dad is an engineer and her mom is a secretary. Worried this guy wouldn't be impressed by her job in customer service and her humble upbringing, Dunlavy lied. Though she never completed college, she told him she was a child psychologist. He seemed impressed. After the words were out of her mouth, Dunlavy thought they sounded pretty good — she continued to tell the lie to new people she met for the next four years.

"It was to impress him because he was of a higher social standing than I was. I didn't know it would play into anything later," she says now. "It did make me feel better about myself. I felt important and respected more."

They dated for two years. Then Dunlavy discovered she was pregnant. Her boyfriend was not happy, and they broke up. He agreed to provide her with a house, a car, and money to support the child while she was on maternity leave. He considered moving into the spare bedroom at the house to help her.

But after Sarah was born in July 2005, Dunlavy's life became more difficult. The father didn't move in to help out. Dunlavy's job was outsourced while she was on maternity leave. Sarah had colic and later, Dunlavy would learn, acid reflux — she cried and vomited all the time. And Dunlavy's family was a world away. The new mother was overwhelmed. On one occasion, frightened by two hours of nonstop crying by her 2-month-old daughter, Dunlavy took her to the emergency room.

Sarah was fine — just colicky and constipated — but Dunlavy needed someone to tell her so.

After the ER trip, there weren't many more visits to the doctor, outside of vaccinations and the occasional call for advice. Dunlavy joined three parenting groups and enrolled Sarah in all kinds of classes: swimming, music, Little Gym.

 

But the problems with acid reflux and feeding that surfaced when Sarah was a few weeks old persisted. She had trouble gaining weight, though she continued to grow taller. In December 2006, when Sarah was 17 months old, her pediatrician referred her to a pediatric gastroenterologist at St. Joseph's Hospital, to help manage her acid reflux.

A couple of months later, other problems emerged. Though she was a year and a half old, Sarah said only three words, total. (By this age most children ask simple questions and form short phrases like "What's that?" or "No more.") She didn't close her mouth, causing her to drool constantly, and she had a hard time getting along with other kids. An instructor in one of Dunlavy's parenting groups suggested she have Sarah evaluated by the state's early- intervention program, designed to provide services for children under 3 who have a chance of winding up with developmental delays.

She followed the advice and, in March 2007, an evaluation indicated that, indeed, Sarah had significant developmental delays with regard to speech and feeding.

According to the state, Sarah needed therapy to prevent permanent problems. Dunlavy jumped right on it. Now she wonders whether she should have.

"They told me there was stuff wrong and I did everything I could to fix it," she says. "There's no way of winning. If I hadn't taken her to the therapies I would have been charged with what? Neglect. I take her to the therapies and what do I get charged with? Neglect."


But according to the therapists who evaluated Sarah, Dunlavy did the right thing. Between March and June of last year, Sarah was evaluated by speech pathologists and occupational therapists at six different agencies, including Phoenix Children's Hospital, and Effecti­Com, an agency run by highly regarded speech pathologist Robin Rudin.

Every report mentioned Sarah's low muscle tone, expressive-language delay, and feeding problem. Every therapist recommended six months to a year of therapy to resolve the problems.

Dunlavy was getting Sarah's five hours a week of therapy paid for by the state, and her mother helped her finance three more privately funded hours a week. She also set up a playroom in her house modeled after what she saw her daughter doing in occupational therapy.

"I can't tell you how many of those therapists told me the objective was to get the child okay by the time she started kindergarten," she says. "You know you have a window and you do everything you can."

Later, when Dunlavy was charged with "excessive care," the hours of therapy and the home playroom came back to haunt her. Though the state mandated, via DDD, that Sarah receive therapy, the state also later said, via CPS, that it was too much, a point that Dunlavy finds especially confusing.

"The therapy I got that was extra was because it was helping and she was getting better," she says. "I didn't want her to get picked on or end up with a speech difficulty. It wasn't like she was being electrocuted — it was speech therapy."

Trudy Norman-Murch (who does not know Dunlavy or the details of this case) is the director of services for children with disabilities at Southwest Human Development, an agency that contracts with the state to provide therapy services. She says it's impossible to say how much therapy is too much — it depends on the child — but early intervention is key.

"Children need a lot of practice and the job is to help the parent figure out natural opportunities," she says. "The speech pathologist isn't going to be there to feed your child every day. The goal is to figure out what strategies will help and use them every day."

And it's not unusual for a child to wind up in therapy these days. Michelle Macias is the director of developmental-behavioral pediatrics at the Medical University of South Carolina and chair of the American Academy of Pediatrics' developmental-behavioral section. She says there has been an increase in the number of children under 3 who receive some kind of therapy since 1987, when a federal early-intervention law was passed requiring states to set up programs like Arizona Early Intervention Program.

"We know it has increased. There's no question about it," she says. "It's increased because of better detection. The earlier you detect, the earlier the intervention, the better the outcome. The therapists are helping them to prevent bad patterns from developing."

Macias says those bad patterns are especially common in children, like Sarah, who have feeding issues — they can simply forget how to eat, especially once they get a percutaneous endoscopic gastronomy feeding tube — or PEG tube — such as the one Dunlavy was trying to avoid. According to Macias, a lot of confusion surrounds feeding problems, partly because they are subtle, partly because not enough research has been done on them.

 

But there's no doubt about it — more kids just like Sarah are in therapy than ever before. And it's sanctioned (and paid for) by the government.

"People think, 'Well, they'll just learn to eat.' You would be amazed at how fast kids who have feeding problems lose that ability," she says. "It doesn't automatically get better at all. You really have to start early with feeding issues. No question about it."


Sarah began to improve. Her speech was getting better, but her eating was still irregular.

"[She] tends to panic easily and will reject a food rather than sitting down and figuring out how to work with the food," speech therapist Robin Rudin wrote in June.

Her projectile vomiting had stopped, and Rudin thought that might be linked to her failure to gain weight.

"Mom has noted that [the child's] decline in appetite seems tied into her decreased reflux. It appears possible that [the child] has learned that her stomach feels better if she doesn't eat. Now that she eats very little she does not have trouble with vomiting," Rudin wrote in September.

This theory was never fully explored. Instead, worried that his patient gained only one pound between December 2006 and September 2007, the gastroenterologist suggested Sarah might need a feeding tube. The procedure places a PEG tube in the patient's stomach, allowing liquefied food to go directly into the body. The surgery can be performed two ways — through the mouth, using an endoscope to guide the tube to the stomach wall, or by surgical insertion of the tube through the skin.

Dunlavy was horrified.

"I didn't want the PEG in my child," she says. "I wanted to try everything else, I wanted [a more intense] feeding therapy program."

In an effort to avoid the tube, Sarah underwent minor surgery in early September that clipped the skin underneath her tongue. Before the surgery, it extended farther than normal, restricting her tongue's motion. The clip was performed by Dr. John Raines, who noted he didn't think it would help her gain weight and suggested Dunlavy talk to a friend of his, gastroenterologist Mitchell Shub at Phoenix Children's Hospital.

Dunlavy visited Shub on September 26 to talk about the feeding tube. She was still hoping to avoid it, but Shub thought Sarah was a good candidate for the PEG.

In his report, Shub writes, "I believe that placement of a percutaneous gastronomy feeding tube would be helpful in maintaining good nutritional support."

He spent 75 minutes urging Dunlavy to agree and suggested the child could be evaluated as an inpatient first. She remained unconvinced but agreed that an evaluation might be a good idea.

The report was sent to Sarah's pediatrician, Kevin Berger.

The family was new to Berger's office. Dunlavy had switched primary-care physicians in August because she'd heard he had a good reputation working with DDD clients. She was hoping he'd be able to guide her through Sarah's difficulties and help her get things like Pediasure — one of the child's main sources of nutrition — paid for through her insurance. They met for the one and only time at a new patient evaluation.

Dunlavy liked Berger. She describes it as a basic appointment. Sarah sang her ABCs and pointed out colors on the wall.

"He didn't give me any impression he thought there was something wrong," Dunlavy says. She briefed him on her daughter's medical history and he noticed Sarah had pinkeye. (Dunlavy hadn't see it because pinkeye can be difficult to detect.) He prescribed eye drops and the appointment was over in 20 minutes.

Dunlavy had no further contact with his office until October 10, when two of her daughter's therapists at Scottsdale Fiesta Pediatric Therapy noticed something unusual. Several times during the session, Sarah stopped what she was doing, stuck her arms out, and shook for about 10 seconds.

They reported what they called "shuddering spells" to Dunlavy, who wasn't in the room during the session, and suggested she have her daughter checked by a neurologist.

Dunlavy called Berger's office and left a message for him. Later that day she was told to bring Sarah to Phoenix Children's Hospital, where she would be evaluated for both the shuddering spells and also her feeding issues, as Shub had suggested at their consultation.

She followed their instructions, but she had no idea what was going on behind the scenes. Between her first phone call and Sarah's arrival at the hospital, Berger called Phoenix Children's and made a very serious allegation.

He wanted the hospital to evaluate Dunlavy for Munchausen Syndrome by Proxy, though the note made in Sarah's medical records does not say why.

 

(Interestingly, the two therapists who first noticed the shudders — and who had been treating Sarah for more than six months, at that point — were never consulted when the MSBP diagnosis was made. Not by the doctors at Phoenix Children's Hospital, and not by CPS.)

Twelve days later, Dunlavy lost her daughter.


She never suspected a thing, but Carol Dunlavy and Sarah were under constant surveillance at Phoenix Children's Hospital.

The hospital would not comment on her case, nor would it answer questions about Munchausen Syndrome by Proxy. Debra Stevens, a spokeswoman for the hospital, did say the hospital has a zero tolerance policy when it comes to child abuse.

In Dunlavy's situation, it's difficult to determine from the records exactly what she was doing wrong.

The accusations made against her by CPS claim she wanted to expose her daughter to unnecessary medical procedures, like the feeding tube.

But Dunlavy made it clear she didn't want the surgery for her daughter from the moment it was brought up, a fact documented in reports from both GI surgeons she visited and the admitting physician at PCH who wrote, "Mom says she would rather not see her child get a PEG tube."

Yet on October 26, forensic pediatrician Jennifer Geyer wrote a report recommending the child's removal and accusing Dunlavy of pushing for the tube.

"I am concerned that [the child] may have progressed to surgery if there had been no intervention," she wrote, despite a report written only one month earlier from a GI doctor at the same hospital stating otherwise.

The doctors at PCH also accused Dunlavy of lying about seizures in her child. While Sarah was admitted to find out what caused the shudders observed by her therapists, the admitting documents show Dunlavy never said the word seizure. She still just calls them "shudders."

The hospital found no evidence of epileptic activity, though it did record two shuddering episodes, which have never been explained.

Because Sarah was hooked up to an EEG, to monitor her brain activity and detect seizures, the room was under video surveillance — though notes show this was used more to watch Dunlavy than to monitor the child.

During the hospital stay, controversy constantly swirled around Sarah's eating habits. She was put on a strict feeding plan — too strict, in Dunlavy's opinion. She worried her daughter wouldn't eat anything, and notes do show behavior typical of Sarah's fussy eating habits. Sometimes she would eat a few bites, but she was just as likely to throw her pancakes or use her fruit slices as building blocks. She did this whether or not her mother was in the room.

Dunlavy decided she didn't want to follow the strict plan and made it known that if her daughter asked for something to eat, she was going to give it to her, even if it wasn't on the menu.

"My view was, why don't you feed her what she normally eats? And then you can see what her normal intake is," she says. "When she didn't eat, I wanted to be allowed to give her other things like ice cream to fatten her up."

She was caught on camera doing so. A nurse's note from October 20, 2007, says, "RN got call from video monitor today said mom is feeding patient bagel and milk via sippy cup."

A note from the attending pediatrician that same day indicates there was no medical reason why Sarah's diet couldn't be expanded.

Another note accuses Dunlavy of throwing a diaper away. Under the feeding plan, Dunlavy was supposed to weigh and save all diapers. She acknowledges she put it in the trash but says she wasn't trying to hide it from doctors; she'd just forgotten. By this point, there was so much controversy over the plan, in general, that the diaper incident was regarded with great suspicion.

Boston-based psychologist Eric Mart, a national expert on Munchausen Syndrome by Proxy, says this is common in cases where MSBP is alleged.

"One thing you see frequently is that these allegations often come up after there's an altercation between the parent and doctor," he says. "Next thing you know, it's Munchausen."

On October 22, the doctors decided they had enough evidence to remove the child from her mother's care. Up until this day, her father had not been very active in Sarah's life. He'd come by the house to see her on occasion, but medical records show he admitted in an interview with a PCH speech therapist his lack of involvement.

Records also show he became very concerned about Sarah after the allegations CPS made against her mother.

The thing is, nothing about the child's feeding behavior changed after Dunlavy was out of the picture.

 

Notes indicate Sarah was just as disinterested in eating with her dad as she was with her mom: "Secondary to dad's surprise arrival, patient lost all interest in food . . . as soon as patient saw cafeteria she started crying and said, 'No, no!' Sat on dad's lap and took one bite of grilled cheese. Patient was not interested in food.

But the final nail in Dunlavy's coffin was her big lie. For most of the time Sarah was in the hospital, the staff thought her mother was a child psychologist. To them, this meant she had the medical knowledge to fake an illness — a classic MSBP sign. Later, after the father was involved, he told them the child psychologist line was a lie. Lying or exaggeration are also MSBP red flags, and it made her look terrible in the hospital staff's eyes. Geyer reported there were concerns about her "deliberately deceitful" behavior.

Dunlavy never thought it would go so far.

"The only thing I ever said to the doctors that was not true was that I had a degree. I have self-esteem issues; I think that's pretty obvious. But I don't feel in my heart that because of what I told [her father] I deserve to lose my daughter," she says. "She was completely separate from that. It was 4 1/2 years before she was even born."


On the morning she lost her daughter, Dunlavy left the hospital, planning to go home, do some laundry, and get back to Sarah's bedside by afternoon.

Instead, at 10 a.m. there was a knock on her door. It was a CPS case manager, there to serve Dunlavy with a notice to remove her child. The official accusation: neglect.

Dunlavy doesn't remember the first moments after finding out. She says she stayed in a state of shock for days; she lost 16 pounds in two weeks.

She barely got to say goodbye. She was allowed to visit Sarah for one hour with her father's supervision.

According to hospital notes, when visiting hour was over, the child began to cry and say, "Don't want mommy and daddy to go." She was used to spending every night with her mom. She was in a new room where the hospital was using a pseudonym so Dunlavy couldn't find her. She had an ankle bracelet on — the kind that people on house arrest wear — so she couldn't leave the room.

"Do you know how horrific it was to see her like that? With an ankle bracelet on her?" asks Dunlavy.

Dunlavy began to cry.

"Can't I just stay with her until she calms down?" she asked the nurse.

She couldn't. She didn't see her daughter again for three weeks.


Though she was first accused of neglect, by October 30, CPS had changed its allegation to Munchausen Syndrome by Proxy.

It's a loaded accusation. In the past few years, there has been some debate over the legitimacy of the diagnosis. Roy Meadow, the British pediatrician who coined the term, even lost his license in 2005 (see "Medical drama").

Eric Mart says first-time, worried moms such as Dunlavy are prime targets to be accused.

"There are a lot of single mothers who don't have anyone to help them with their baby, and the emergency room is always open," he says. "If no one else will help, they'll help."

The charges against her: taking the child to the doctor frequently, reporting her weight in the 16th percentile when it was in the 50th, testing her for allergies, withholding food at the hospital, and pushing for a feeding tube.

A review of the child's medical records — including those from PCH — shows the allegations are false or wildly exaggerated.

CPS granted physical custody to the father, with a court order to establish paternity through a test. There are hospital notes that indicate CPS intended for dad to get sole custody even before the first dependency meeting.

Dunlavy's court-appointed lawyer was Jennifer Morse, a veteran of CPS dependency cases.

On Halloween, instead of taking Sarah trick-or-treating, Dunlavy attended her preliminary protective hearing, the first step toward a dependency trial, where the state submits its probable cause evidence against the parent. In Arizona, hearsay is enough for probable cause — no hard evidence against Dunlavy was submitted at this hearing.

Morse says she assumed CPS had all Sarah's medical records, or at least her DDD file, on which to base their decision to remove Sarah from her mother's care.

They didn't. No one possessed any evidence beyond allegations at the first hearing, and in the coming weeks, no effort would be made to collect any.

According to the state's own policy, specific steps must be taken before a child is removed from a parent because of MSBP, including finding an expert to perform an evaluation, providing the expert with the child's complete medical records, and interviewing the parent, family members, friends, and the child's medical-care providers from birth.

 

Most of those steps never happened. When they did, it took months for CPS to perform them.

Morse needed medical records to help her build a case. She still hadn't gotten them from CPS, so Dunlavy collected them herself. Phoenix Children's Hospital would not release the record of Sarah's stay because Dunlavy no longer had custody.

"I requested them from the assistant attorney general. This was four weeks into it. Finally she called me and said she didn't think they had anything," says Morse. "I was stunned. I said, 'I don't understand. You have to have something. You at least need to have the file your sister division has.' She said no. She thought they had based their dependency on talking to people. They don't have any records."

Morse, who has litigated cases for CPS in the past, knew this was a gross breach in policy.

"What the AG was telling me was they hadn't talked to anybody or looked at any of the records," she says. "And then they made a decision to take the most extreme step, to take the child from her mom."

Morse says that without reading that medical history, it's easy to miss Sarah's complex difficulties. Failing to interview Dunlavy added to the confusion.

"They [didn't] know anything from October to January about her parenting," says Morse. "They completely violated their policy. If they had followed it, I don't think they would have filed."

Morse decided to file a motion to return the child, based on the notion that CPS hadn't done its job. She also decided Dunlavy needed to find her own MSBP expert.

They found Loren Pankratz, a renowned expert on the topic and a professor at Oregon Health and Sciences University. Dunlavy flew to Portland for the evaluation at the end of December.

His conclusion: Dunlavy does not have Munchausen Syndrome by Proxy, or any other kind of mental illness.

"I view this accusation as a breakdown in the delivery of medical service," he writes in the report. "This is not a case of Munchausen Syndrome by Proxy."


Dunlavy's dependency trial was slowly approaching and Morse was finding her client's case more and more bizarre. She couldn't figure out how CPS had decided to go as far as they did with it.

"It just seemed odd to me that there was this idea that the mother had made up the developmental disabilities," she says. "Because in order to get into the DDD program for Arizona Early Intervention, it can't just be the parent [saying there's a problem]. There has to be objective criteria," she says. "Not every child between zero and 3 is accepted."

In early January, Sarah's father got paternity test results back that proved he was her father. Immediately, the assistant AG filed a motion to dismiss the case and affirm the temporary orders that placed Sarah in her father's custody. She argued there was no need for a dependency trial now that it was clear the child had at least one fit parent.

Morse didn't respond right away. She already had trial dates set, and, because it was a case of the state against Dunlavy, not the father against the mother, she knew the dependency trial had to go on.

On January 10, 2008, Dunlavy agreed to an interview with the guardian ad litem (basically, Sarah's attorney), Lauren Hatfield. This was the first time anyone from the state interviewed Dunlavy.

At the meeting, Hatfield told Dunlavy and Morse she was concerned Dunlavy had "excessively cared" for the child and provided her with too much therapy.

"I argued that really wasn't for them to decide. It's something for the parent to decide," says Morse. "The child isn't going to be hurt by a speech therapist."

Dunlavy didn't know how to take it.

"I have no idea what law that is, but obviously, you can lose your child," she says. "So if anyone is out there and they care too much for their child, they better watch out."


The day before the dependency trial, Morse filed several motions. One was in response to the AG's motion to dismiss, which called on the state to give Sarah to her dad. She argued it was impossible to dismiss the case and just give the father custody. It violated Dunlavy's due process rights to award custody without a hearing.

She also filed a motion to dismiss the case because CPS had taken Sarah away without a good-faith basis to do so, and then had failed to follow its own policies while investigating the case.

So, on January 29, the day of the trial, Commissioner Joan Sinclair had three choices.

 

She could side with the AG and give custody to dad. She could side with Morse and return everyone to the position they were in before the state took Sarah. Or she could decide to go ahead with the trial, hear the evidence, and then make a decision.

Morse argued that Sinclair really had only two choices because she felt the AG's request was legally impossible.

"If you're going to change the mother's legal position to her child, then she has a right to be heard," she says.

Sinclair took a recess and came back with her decision 22 minutes later.

Morse was stunned. The judge dismissed the dependency petition and released the child to her father's custody, making orders against Dunlavy without reviewing any evidence — something with frightening implications for Arizona's CPS system.

"It's terrifying. It means that CPS doesn't have to investigate," Morse says. "They can make allegations, they can go in and decide which parent they like better, and take the child."

Dunlavy has decided to fight.

"I must have been the only person in Arizona who ever wanted to go to trial," she says, "because I knew they violated all their policies."

"Everybody gets a hearing in juvenile court. There are parents who are incarcerated for life who are allowed to protest dependency — murderers, rapists, and child molesters — they have a constitutional right to parent, so everyone gets a hearing," she says. "And she just didn't."

Morse has stayed on as Dunlavy's attorney and two other Phoenix lawyers, Tom Ryan and Deshon Pullen, have signed on pro bono to guide her through an appeal in family court. (The attorney general recently filed a motion to dismiss the appeal.)

Dunlavy and her attorneys are also discussing whether to file a civil suit against the state.

Life does go on. Dunlavy has enrolled in school at Scottsdale Community College to get the degree she lied about having.

Neither Dunlavy nor Morse has access to medical information that would tell them whether Sarah's weight has increased, or whether her feeding problems have been resolved. They do know she never got the PEG tube. And Dunlavy knows that Sarah is still in speech and occupational therapy at Phoenix Children's Hospital because they're still sending her the bills. (Berger also sent a bill recently, although his office didn't say what it was for.)

Dunlavy reports that her daughter does a pretty good job on her peanut butter and jelly sandwich and cookie when they're together for their visits at the food court at Arrowhead Mall.


Correction (posted April 24, 2008): It should have been reported that Maricopa County Superior Court Commissioner Joan Sinclair made the final decision on January 29 to dismiss Carol Dunlavy's dependency hearing.


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