Bitter court battles, a family torn apart, and state workers lying in court documents to justify it: It all started with an innocent poolside accident.
On September 10, 2014, Obeidalla Birair, a father of five, was by the pool at his home in Mesa while three of his children played in the water. (Intisar, his wife, was inside the house.) His phone on a nearby table rang. He turned around and moved toward the table to answer it. One of his kids, three-year-old Mu.B — Phoenix New Times is identifying the children involved in this case with acronyms to protect their privacy — who didn't know how to swim, "jumped or fell" into the deeper part of the pool, according to court records. Seconds later, Obeidalla jumped into the pool and pulled Mu.B. out of the water. Although his son was coughing and choking, he never lost consciousness.
Obeidalla's phone had fallen in the water, so he carried his son to the front of their home and asked to borrow a neighbor's phone. He called 911 and rode in the ambulance to the hospital with his son for any necessary treatment and observation. A doctor said Mu.B was fine, though they decided to have him stay overnight just to be safe.
But the events of that day would dramatically alter the lives of the Birair family.
The following day, Edmond Kolycheck and Sara Kramer from the Department of Child Safety (DCS) showed up at the Birair home, demanding to enter the house and asking questions about the pool incident. Initially, Kolycheck would tell Obeidalla that they were going to remove two of the five children because the parents had "no control" over their kids, despite the fact that they lacked a court order. Then the DCS workers called the cops and abruptly removed all five children.
Obeidalla argued with a Mesa police officer who showed up, resulting in him being handcuffed inside the back of a squad car. He watched his children get shuffled into various vehicles and taken away to a variety of group homes and foster homes.
It was the last time the family would live together for more than a year.
After the removal, state caseworkers made false allegations against the parents, claiming falsely among other things that the kids weren't being fed properly.
"Oh, my god, it was really terrible," Obeidalla told New Times in a phone interview. "They were brutalizing us for one year and a half. Can you believe that they kept the kids away from us for one year and a half?"
The Birair family would eventually sue DCS, the involved DCS staffers, and a Mesa police officer who oversaw the removal in federal court roughly a year after the original incident, alleging civil rights violations. In late 2018, a judge sided with them on most of their counts, admonishing the state caseworkers for their removal. One of the caseworkers would eventually admit there was no evidence to justify the removal of the children. Following the court order, the state settled with the Birairs, and they were paid $900,000 in late 2019. (Phoenix New Times learned of the case and the settlement through a public records request.)
"What is egregious here is the manner in which the decision was made to remove all five children from their parents," United States District Judge Diane J. Humetewa wrote in her September 5, 2018 summary judgment order in the case. "Without seeking a court order, and absent a situation that would lead to imminent bodily harm to one or any of the children, the State decided to remove all of them."
The case is also indicative of DCS caseworkers' tendency to remove children from their parents under questionable circumstances. Historically, Arizona has separated children from their parents at very high rates: Between 2007 and 2017, only Wyoming and Virginia removed kids at higher rates than Arizona, according to news reports. Over the years, DCS has faced a number of lawsuits for wrongful child removals — including a claim filed this summer by a former Valley couple who allege that the agency took their newborn for nine months without a court order over false allegations of child abuse.
"The way the Birair case was handled from the minute the [DCS] worker arrived until the minute those kids left was wrong. It violated their rights in so many ways," said Timothy Turner, a former investigative specialist for DCS who now works as a consultant for cases involving child welfare agencies. (He also served as an expert witness in the Birair case.) "This is only one of many where they just went in without warrants and took the kids and used temporary custody notices, which are only supposed to be used in emergencies."
"They didn't consult a judge. There was no court involved," he added. "That’s what I see happen a lot in Arizona."
While Governor Doug Ducey and state legislators approved a new law in 2018 intended to require DCS staff to obtain court orders when removing children in most situations, some attorneys and advocates in the child welfare field say that problematic removals are still happening.
"There’s hundreds and hundreds of other cases where DCS has removed and seized children from homes for a lot less," said Lori Ford, co-founder of AZ DCS Oversight, an organization that monitors DCS activities and works with families caught up in the child welfare system. "DCS coming in and taking children for a pile of clean laundry that was on the couch waiting to be folded. That still continues."
When asked for comment on the Birair case the DCS's general practices when it comes to child removals, Darren DaRonco, a spokesperson for the agency, touted the agency's efforts to reduce removals. He pointed toward reductions in DCS workers' caseloads and updated policies and training for staff.
"In February 2016, DCS had 19,044 children in out-of-home care. Today, that number is below 14,300, a 25 percent decrease," he wrote in an email. "Despite the significant turnaround over the years, there is always work to be done. DCS is devoted to improving how we serve Arizona’s vulnerable children and at-risk families. They deserve no less."
Under current Arizona state law, child welfare workers can either obtain a court order to remove children or issue a temporary custody notice due to "exigent circumstances" where the children are in imminent danger of harm. But prior to the changes made to state law in 2018, there was no explicit requirement that DCS workers get a warrant before separating kids from their families.
"Before 2018, the procedure was simply for workers not to make any effort to justify their removal through a court order," said Mike Moore, a Tucson-based trial lawyer who has a number of cases pending against DCS over wrongful removals. "The standard practice with the agency was for the worker to go to the house, and if the worker decided that the child needed to be seized, they’d prepare a temporary custody notice and hand it to the parent and take it to the child."
And that's exactly what happened in the Birair case. DCS caseworkers served the parents with a temporary custody notice and eventually took all five kids without a warrant. And then they lied about the facts of the case to justify the removal afterward.
'I'll Take All of Them'
Prior to the removal of the Birair children, the family had experienced several run-ins with DCS staff for a few incidents involving their autistic son, Mo.B, who was very active and occasionally exhibited disruptive behavior. In 2013, a school teacher had called DCS over some of Mo.B.'s behavior, such as spitting and biting. An investigator came to the Birairs' home within days to investigate, but found no cause for concern and told the Birairs that the file would be closed, according to court records.
By most standards, the Birairs would be considered upstanding citizens. Obeidalla and Intisar both emigrated to the United States from Sudan in the late 90s, going on to obtain college degrees and U.S. citizenship. Neither of them has a criminal record or a record of domestic disputes, and Obeidalla held down a stable job at the Bill Luke Chrysler Jeep Dodge RAM dealership in Phoenix while Intisar stayed home to care for the children. They are practicing Muslims, and the family spoke both English and Arabic at home. They followed doctors' advice in enrolling Mo.B. at a local school that specialized in educating autistic children.
"He had a good job, they were educated, the children were born in wedlock, the whole thing," said Dennis Blackhurst, the attorney who represented the Birairs in their successful lawsuit. "None of it fit with the idea that they weren’t feeding their children."
In August 2014, the file on Mo.B. was suddenly re-activated and a DCS investigator, Ed Kolycheck, appeared at the child's school. Eventually, Kolycheck and Intisar went to the Birair home to discuss the matter further, where Kolycheck stated that he was conducting a follow-up investigation into the incident from the previous year — despite the fact that no new incidents had occurred and the case file had reportedly been closed. At the home, Intisar allowed Kolycheck to inspect the house and observe the children. Kolycheck expressed no concern and did not require any sort of follow-up from the Birairs, according to court records.
Two weeks later, Mo.B. was playing on his bike shirtless near the Birair home in the neighborhood when he took off running. A woman driving nearby assumed that he was unsupervised and picked him up and called the police. Within minutes, Obeidalla and Intisar caught up with Mo.B. and took him home.
"Living with autism is not easy. No father or mother that has a kid with a disability, with behavior of running or other stuff, has no issues," Obeidalla said. "Some things are going to happen, you know?"
But the neighbor's 911 call still brought the police to the scene. They notified DCS of the incident and Kolycheck came by again the next day to investigate. He sat and talked with Intisar, but eventually left without voicing any concerns about the state of the home or the Birairs' parenting.
Then came the poolside incident in September 2014. The night that 3-year-old Mu.B. was at the hospital, Sarah Opuroku, a DCS caseworker, stopped by the hospital and spoke with Intisar, allegedly telling her that DCS was not concerned about the episode.
But Kolycheck and Kramer, another DCS worker, still showed up the next day intent on removing the children. According to the original complaint, Kolycheck forced his way across the threshold of the Birair home and demanded to know where the children were. Obeidalla walked to the door of a bedroom where his daughters were, only to find that they had locked the door from the inside. Kolycheck, who would later cite the locked doors as evidence that the Birairs abusively locked their children in their rooms, then told Obeidalla that he had "no control" over his kids and that they were going to remove two of the five Birair children.
After some continued arguing between the Birairs and the DCS workers, Kolycheck called his supervisor and informed the parents that they would be removing all five children immediately. Kramer, the other caseworker, called for police back-up.
"He just turned around and he said, 'All of them, I'll take all of them.' Just like that," Obeidalla said. "They were completely disregarding us as human being[s]. They were dealing with us like we're not even supposed to have kids."
Things escalated from there. Jason Flam, an officer with the Mesa Police Department, arrived on the scene, and fielded continued questions from the Birairs about the legal basis for the removal. At one point, Obeidalla turned to go back into his house after Flam had directed him to stay put. Flam promptly pointed his taser at Obeidalla and shouted at him to get on the ground, which he did. Obeidalla was then handcuffed and placed in the back of a police car.
Then the DCS workers took all five children.
"I'm in the car, it's 109 degrees, and I was looking to my kids being taken away one-by-one," Obeidalla said. "I was knocking my head into the glass, trying to grab their attention."
The children were placed in a variety of different foster home settings. Mo.B., who is autistic and was 9 years old at the time, was placed in a group home, where he allegedly missed 55 days of school and associated therapies; he was also medicated without the consent of his parents. One of their daughters, H.y.B., then 4 years old, was also placed in a group home, where she was allegedly struck by one of the facility's workers and observed digging through trash looking for food because she was hungry, according to court records. (She also allegedly lost 20 percent of her body weight.) Three-year-old Mu.B., meanwhile, was initially placed with two of his siblings before he was moved to a separate home.
Extensive research has documented the traumatic effect that removals can have on children when they are separated from their families by state interventions. A 2016 article published in the University of Pennsylvania Journal of Law and Social Change argues that physical separation of a child from their caretaker is "often experienced as a significant rejection or loss" by the child, and that being forced into the foreign environment of foster care compounds the traumatic effects.
"Researchers have found that the physical placement into a foster home, as well as any subsequent placement changes, have been shown to negatively impact a child’s ability to form healthy attachments," the article states. "Similarly, researchers found a negative association between the number of unique caregivers for children and positive neuropsychological outcomes related to executive functioning, which may limit their capacity for social and emotional functioning, adaptive coping, self-regulation, decision making, developing secure attachments, and maintaining healthy relationships."
"It’s extremely traumatizing," Turner, the former DCS worker, said of child removals. "To have the Birair kids marched out to a car while their father is handcuffed ... that’s going to traumatize those kids."
The Birairs were able to visit their children regularly, but only for brief periods. And they weren't allowed to talk about the case with the kids, leaving them in the dark about why they were separated.
"The kids were very confused: 'Why? Why? Daddy, why do you leave us?'," Obeidalla said. "And Mo.B., he was telling me, 'I'm so sorry, I'm not going to do anything bad again, can you take me home?' This kind of stuff. You can't imagine what we were going through. It's difficult."
Obeidalla recalled an episode roughly six months after their children were taken away where he woke up in the middle of the night and saw his wife standing upright. She was thinking about the case and their chances of getting their children back after months battling DCS in juvenile court.
"I woke up at, like, 3 a.m., and then I found my wife and I looked at her and she was like somebody else, different person," Obeidalla said. "I said, 'What's going on?' She said, 'Are we going to get our kids back?' And at that time I was just like, I need to stand up, because I know my wife is about to collapse."
To justify the removal after it happened, DCS workers made numerous false allegations about the Birairs' parenting. In a dependency petition dated September 17 that was filed in juvenile court, Kolycheck alleged that the Birairs were "neglecting the children by failing to provide the children with the basic necessities, food, clothing, shelter, medical care and appropriate parental supervision" and that they "lock the children in their rooms in order to prevent them from running around the home."
However, during the course of the lawsuit, Kolycheck eventually admitted that the sworn statements he made in the petition regarding the Birairs' alleged mistreatment of their kids were unfounded — save for him seeing the locked bedroom door at the family home on the day of the removal.
"The admissions by the state employees, particularly Defendant Kolycheck’s refuting his sworn statements contained in the Dependency Petition, are extremely troubling. It is apparent to this Court that the juvenile court relied heavily on Kolycheck’s sworn statement in deciding to keep the children away from their parents," Judge Humetewa wrote in the September 2018 summary judgment order. "What is more, these statements, that the children were being neglected and not provided food, clothing, shelter, or medical care, and that the 'parents lock the children in their rooms,' are misleading at best and perjury at worst."
"Kolycheck’s declarations, made under oath in a sworn Petition filed in the juvenile court, were not just untrue, he knew they were false yet he made them in an apparent attempt to influence the juvenile court into finding probable cause to support his actions," she added. "And the court did."
DeeAn Gillespie, a Phoenix-based family law attorney, said that DCS caseworkers have a tendency to exaggerate the facts or insert outright falsehoods into case reports to justify removals.
"Once the pivotal decision has been made to remove a child from parents and family, too often, those who did that use the resources of the state to justify the decision and it’s hard for them to rethink or reanalyze," she said. "I’ve seen highly inflammatory and tabloid-like themes written into a case report to justify removal."
"It’s rare that those case reports contain complete and accurate information," she added.
"Over and over and over, what I have seen is the complete absence of a straightforward, fair, and equitable presentation of the facts," Moore, the Tucson-based attorney said. "This to me is built-in within the system."
He added that DCS workers seem to still be operating by a playbook utilized before state laws were changed to require warrants for child removals. DCS workers are still removing kids without warrants, he said, just as they did in the Birair case.
"The word about what authority an investigator actually has to remove a kid without a court order has not gotten down to the DCS workers on the street," Moore said. "I took testimony from DCS workers in 2019 ... it was clear that these individuals were still using the same procedures that they’ve always had. It’s basically, 'Hey, what do I think here, do I think this kid needs to go without any consideration for what that actually means.'"
In response to New Times' questions regarding Kolycheck's fabrication and other similar allegations, DCS spokesperson DaRonco responded with a general statement.
"The Department expects all DCS staff to follow and comply with applicable state and federal laws, state personnel rules and DCS policies," he wrote. "We hold our employees to a high standard and we thoroughly investigate any alleged employee violations of the law or policy."
Kolycheck was employed with DCS between 2013 and 2015. He had "no disciplinary actions" in his personnel file, according to DaRonco.
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Blackhurst, Obeidalla's attorney, thinks that the Birair's ethnic background played at least some role in the decision to remove all five of the kids; the parents are Black, Muslim, and foreign-born. Meanwhile, general racial disparities in Arizona's child welfare system have been well documented.
"These were foreigners who spoke English as a second language. They were not quiet. These were not meek, submissive people. They were asserting their rights," Blackhurst said. "I think the state workers don’t like that. I don’t think they like to be told that they’re violating somebody’s rights by a loud foreigner."
But to Obeidalla, he read it more as a misunderstanding of what it's like to have children with disabilities.
"I’m a father of people with disabilities," he said. "They don’t understand the challenges you have with kids who have a disability."