Saturday, Sep. 19, 2009

Child's life upended in DSS case

A 6-year-old girl has been in foster care in Horry County since the age of 2, except for a five-month stay with a relative in New York, during which time there were allegations of mistreatment and sexual abuse in an aunt's home.

She was brought back to South Carolina after the complaints and court violations.

Family Court ruled recently that she must be returned to New York to be nearer to a mother who has struggled for years with alcohol and drug abuse.

Those who have taken care of or known the girl for most of her life are frustrated. They believe the S.C. Department of Social Services didn't do its job well enough to keep the girl in Horry County, where at least three families are willing to adopt her.

DSS was given temporary custody in September 2005 after the mother was charged with assaulting the girl's father. According to court documents, the mother believed the father, who had a history of domestic violence, was trying to take the girl, and she fended him off with a screwdriver.

The charges were eventually dropped, but the mother failed drug tests, and DSS retained custody.

Julia Watson and Mary Beth Halvorson are usually reluctant to speak publicly about problems they see in the state's child protection system for fear of retaliation from DSS. But this time, it would be wrong to remain silent, they said.

They are on the Foster Care Review Board. Halvorson is also on the board of the nonprofit Fostering Hope and Heroes for Children.

The Guardian ad Litem program is also against the girl's return to New York.

"I am heartsick. I'm sure that it will not be pleasant for a while," Halvorson said of her relationship with DSS. "I plan on being a thorn in their side for years to come. I cannot in good conscience give up on these kids."

DSS spokeswoman Virginia Williamson said the agency couldn't respond to questions because of confidentiality protocols.

"DSS is working to implement the family court's orders," she said. "We are not free to go point by point to clear up misperceptions about the case and the course it has taken."

A lawyer for the girl's mother, Christopher Clark of Nelson, Mullins, Riley & Scarborough, said the concerns are "based on what I call the mythology of this case instead of the facts of the case that were proven at trial."

"Although at one point [my client] had a problem, she kicked it," he said. "All of the testimony that was in the trial was positive. That's the point of the trial, to get through the hearsay. I have no reason to believe she will be in any danger with her mother."

Halvorson and Watson believe she will be because DSS did not prepare well enough to verify the accusations stemming from the girl's first stay in New York and didn't follow up on other leads for a case that could have ended the mother's parental rights.

What's more, the case began in February and was continued in July, giving the agency more time to investigate and have experts and other testimony ready to meet the high legal bar to sever a parent's rights.

"It's true that they didn't present anything permissible," Clark said. "Why they didn't? I don't know. It might have been budgetary."

But these types of cases - trying to take away a parent's rights - present unique challenges for DSS. In South Carolina, a third party has a "substantial burden" to remove what Family Court Judge Ronald R. Norton said was "among those fundamental liberty interests" guaranteed by the U.S. Constitution and a basic civil right.

DSS could have done everything right and still lost.

Judge Norton ruled DSS did not prove its case on a variety of levels.

The mother's drug counselor testified that she completed treatment but also tested positive for marijuana in March 2008 and self-reported drug use in August of that year. Several random drug screens detected a substance that suggested illicit drug use. DSS did not present an expert witness to verify that possibility.

"No evidence was presented at trial regarding the laboratory procedures used during the screening process or the chain of custody of any laboratory samples," Norton ruled.

The counselor initially testified the mother should receive custody but later said she shouldn't and wrote a letter to DSS saying the mother had missed several therapy sessions and tested positive for marijuana use again.

Because DSS did not present "specific evidence establishing how the drug screen samples were processed," the letter was impermissible, and the counselor's initial recommendation stood.

A case worker with the Madison County Department of Social Services in New York testified that the mother had established stable housing suitable for her daughter, but she was against the return of the little girl because of a "series of police reports uncovered ... which mention Defendant" and hinted at illicit drug use.

But she "failed to interview anyone concerning the events in the reports, relying exclusively on her review of the hearsay statements and inferences she drew from them," Norton ruled. Neither did the Madison County social worker order additional drug tests. Most of the allegations in the reports were not allowed in as evidence. Because the allegations of sexual abuse and other mistreatment when the girl was in New York with an aunt weren't followed up with an investigation or charges, they, too, are considered hearsay.

"It is clear that Defendant's progress toward reunification with [her daughter] was sluggish at the outset due to her struggles with addiction, but she has since made laudable and measurable progress," Norton ruled. "The record does not reflect, by clear and convincing evidence, that the roadblocks to reunification that were present in October 2005 remain obstacles today."

During a "permanency planning" hearing, Judge Lisa A. Kinon ruled that the girl should be returned to New York. Madison County would be in charge of the reunification plans, which could mean placement with the mother, a relative or in another foster home.

Kinon also ruled that "SCDSS has fully complied with its statutory obligations."

Don't tell that to Halvorson and Watson.

Statutory obligations may have been met, but "the legal system has failed this child," Watson said, adding that the mother had years to complete a DSS safety plan that many finish within six months.

"Yes, we should try to fix the family," she said. "But when's enough, enough?"

Halvorson believes DSS is under pressure to dispose of foster cases more than 2 months old.

"DSS had all the grounds. They just didn't do all of the work," she said. "In February, they had all of this evidence that came up. Some were a very good report for the mother. But after February, she went down the tubes again. They simply dropped the ball and didn't do it, so they came back in July and weren't prepared. I'm sure the reason all those depositions and things were not done is because they are costly. That's the bottom line."

Case-closure decisions are done on a case-by-case basis, Williamson said.

"DSS would not put the safety or well-being of a child in jeopardy by imposing pressure on staff to close cases that should not be closed," she said.

The state's foster review board and guardian ad litem programs are trying to determine if there's grounds for appeal. But as of right now, the girl is scheduled to be taken back to New York Sept. 28. Her counselor and foster mother told her Thursday.

The girl asked if she would ever see her family again, the one she's been living with for most of her life.

"We made it as positive as we could, that when she goes to New York, she'll be in a foster home, but she'll get to see her family," Halvorson said. "She's not unhappy that she's going to see her mom and her sister. But she's very fearful. She's torn."