Birds of a feather….
How many years in prison for defrauding numerous clients?
All posts by tallasthesky
The truth might not set you free
John E. McCaul, Jr. is a violent career criminal who left his child dependent and neglected in 2005. He went to prison shortly thereafter, and his biological daughter, Sonya, was raised for 8 years by a lovely family who adopted her. When he cooperated with a murder investigation, he had his sentence reduced. He argued a technicality on which his termination of parental rights were overturned. The adoption was overturned as a result, but Sonya remained with her loving family, who were now ,once again, foster parents. When he got out of federal prison in 2012, he tried to get his daughter back. She was loved and cared for, and had a wonderful life with her parents and brother. He knew that she didn’t want to come live with him, and he knew that taking her back would cause Sonya serious psychological damage. Nevertheless, he sought her return and, in a crazy move, and without a best interest hearing, Judge A. Andrew Jackson of Dickson, TN turned Sonya over to him, suddenly, on January 29, 2014.
Because of the egregiousness of the case, volunteers created Bring Sonya Home to advocate for Sonya’s rights. More than 20,000 people have joined Sonya’s Facebook page and over 16K have signed a petition to get her home. Her story has been featured on The View and CNN.
McCaul sued a number of Sonya’s supporters for defamation and tried to get a restraining order so that we couldn’t exercise our First Amendment rights to free speech. The suit was tossed, and free speech is alive and well.
However much McCaul does not want the truth about him known, no one can be sued for defamation for speaking the truth. By suing Sonya’s supporters, though, he opened himself up to questioning about whether our statements are true.
The request for admissions were provided to McCaul as part of discovery in the civil lawsuit he initiated. He could object to any of the questions as irrelevant. He didn’t. He could deny any of the statements. He didn’t. (That’s tricky, because if he denied a statement that’s supported by facts, even in the sealed Department of Children’s Services records, he’d be committing perjury). That put McCaul in a no-win situation. He simply didn’t respond. He knew that if one doesn’t respond to admissions, they’re legally admitted to be true. That’s what happened. These are now filed with the court and publicly available to anyone who wants a copy.
Put yourself in his place. If someone accused you of violating the terms of your parole, and the accusation was false, wouldn’t you defend yourself? If someone accused you of disregarding your child’s feelings and best interest, wouldn’t you defend yourself?
Then again, doing nothing, even when his child had been judicially found dependent and neglected, is John’s modus operandi.
Here are his 302 Admissions.
60% is Still Failing
“…it’s no surprise that departments of children and families have a history of being less than forthcoming with the media, typically citing confidentiality as the roadblock to transparency.[1]”
“It seems that it’s become so obvious (Tennessee) DCS is just making stuff up that people have just stopped pretending otherwise.” –Betsy Phillips[2]
“Victimized once by his daughter’s false accusation, plaintiff may have been doubly victimized by overzealous or incompetent actions of (Tennessee) child protection services workers”. – Eidson vs. TNDCS (2007)[3]
I believe the best service to the child is the service closest to the child, and children who are victims of neglect, abuse, or abandonment must not also be victims of bureaucracy. They deserve our devoted attention, not our divided attention.
Kenny Guinn
Tennessee Department of Children’s Services is known throughout the state as the “Department of Coverups.” There seems to be a disturbing mix of incompetence, corruption, and, yes, coverups.
In 2000, the advocacy group Children’s Rights, on behalf of 9,000 children, sued Tennessee Department of Children’s Services (DCS) because they placed children in group homes and “temporary placements” at a rate (28%) higher than many states. Children deserved permanency, and TN (DCS) was clearly failing. The lawsuit was required to motivate (DCS) to stop putting children at such high rates in group homes. DCS “systematically failed to provide Tennessee’s foster children and their families with legally required placements and services.[4]” Because of the lawsuit, DCS agreed to a long list of objectives that would ensure children’s basic rights.
Despite being sued, things didn’t improve. “Between 2001 and 2003, DCS had three different child welfare commissioners, none of whom had experience running a state child welfare agency for abused and neglected children.[5]” In 2003, Governor Phil Bredesen tapped Dr. Viola Miller for DCS Commissioner .[6]” Dr. Miller was apparently finally qualified to run the agency.
By November, 2003, Department of Children’s Services had complied with only 24 of 136 demands set forth in the settlement, so an independent administrator was appointed to make sure the settlement was followed. The end of the settlement was extended to 2007. Department of Children’s Services only had to comply with the settlement agreement for 12 months to get out from under federal oversight. As of July, 2014, they still haven’t done it.
If all of this sounds theoretical, don’t be fooled. Real children suffer and die. Ty’Reke Evans, age 4, died in December, 2011 from blunt force injuries. His three year-old brother was admitted to the hospital the same day. He survived. DCS had received three abuse claims by educators and family in the preceding weeks. The claims were assigned to different investigators, and DCS’s computer system didn’t make the connection. One investigator hadn’t entered her report into the computer in a timely fashion. In fact, it was entered five months after Ty’Reke’s death.
Children died, but Department of Children’s Services didn’t seem be to keeping records even of child deaths. Or they didn’t want to share them, even with the legislators in Tennessee. State Rep. Sherry Jones asked Department of Children’s Services for records about child fatalities on July 3, 2012. She was to get the results by mid-August, but hadn’t heard by August 27 and wrote another letter to Frank Mix of Department of Children’s Services. On September 5, 2012, she still hadn’t received the requested records and wrote then Commissioner Kate O’Day. It’s not clear when, or if, Rep. Jones received those records.
In 2012, a foster- then adoptive- family sued DCS, which knew an infant’s complicated medical history and knew it was likely to cause him significant problems later. Despite that knowledge DCS failed to inform the family of the child’s medical history and to provide adoption subsidies for special-needs children. Two previous class-action lawsuits against DCS in the preceding decade were also settled for similar failure to disclose medical history and to provide legally-required support to families[7].
In another effort to rehabilitate Department of Children’s Services, The Second Look Commission, seventeen professionals from the community, was created in 2010 to oversee DCS’s handling of children who were abused more than once. In 2012, the commission reviewed the department’s handling of severe abuse cases generally and six case files in depth. The commission found that DCS was communicating poorly and giving up on children too easily, leaving “gaping holes” for child welfare, and failed to protect children even when abusive families were already known to DCS. Lest we see those instances as simply bureaucratic SNAFUs, the article listed several instances of actual harm to children, in which abused children were not checked on for many months and in which a child was placed with the man who had sexually abused her sister. The commission found that more than six reports, on average, were made for abused children before DCS even investigated the report. And, once again, DCS provided inaccurate data.
Betsy Phillips of Nashville Scene wrote a scathing article about DCS in 2012. She reports that DCS admitted to “lying by omission for years.” On top of that, when the Tennessean asked for data on child deaths, the DCS general counsel cited a right to privacy as a reason not to release such data. He lied, saying that agencies such as DCS were disallowed by federal policy to release such records. In fact, numerous other states routinely release such data, and there is, apparently, no such federal law.
Ms. Phillips reported that DCS then said that the media didn’t need to look into DCS because of layers of accountability at DCS already in place for child deaths. When the commission (Child Protection Investigation Team) overseeing child deaths was contacted directly, they said that they only had access to partial information on children’s case files – the part that DCS provided them! That’s hardly independent. But Governor Haslam still supported DCS. [8]
In 2012, a large coalition of media filed suit against Department of Children’s Services after they made repeated unfulfilled requests to Department of Children’s Services to release information about child deaths. Department of Children’s Services Commissioner Kate O’Day made excuses for Department of Children’s Services’ concealment: “These are very real issues and the reasons for these privacy laws,” O’Day said. “They’re not to protect DCS, they’re really to protect the families.” The court wouldn’t let Department of Children’s Services tell the same lie again, and in April of 2013, Davidson County Chancery Court required Department of Children’s Services to release the most recent 50 case files of child deaths or near-deaths in 2012.
A Tennessee State House special hearing on DCS was to occur on March 3, 2012. The Tennessean reported on that date the agency had given “conflicting accounts” about child deaths, a statistic which should have been immediately available and very clear. The legislature had asked for ten years of data on child deaths but was provided with half that. The legislators also asked what Governor Haslam knew about the child deaths, and the agency was vague in its response.
Oh, and, by the way, TNDCS Commissioner Kate O’Day resigned the day before she was testify to the state Senate committee overseeing Department of Children’s Services.[9]
The Department of Coverups continued to cover their own asses, leaving children out in the cold. In late 2012 and early 2013, two Sixth Circuit rulings affected Department of Children’s Services. Up to that point, caseworkers could remove a child from a parent’s custody virtually without cause, with only a court hearing three days later. The new rulings led Department of Children’s Services’ lead counsel to say that children would not be removed except in the most dire of circumstances without a court ruling. Although it might seem to make sense, insiders knew immediately that the potential for harm to children was staggering. Within hours, TN juvenile court judges agreed to a solution; they would be available 24/7 to make court rulings over the phone when it was necessary to remove children. Inexplicably, though, Department of Children’s Services’ general counsel Douglas Dimond declined, saying that he felt caseworkers needed to actually appear in a courtroom. Department of Children’s Services appeared to be protecting itself from legal ramifications rather than doing its job of protecting children.
By 2014, there have apparently been some reforms at Department of Children’s Services. But a January 27, 2014 Audit of Department of Children’s Services revealed a number of problems, including[10] failing to investigate child-abuse investigations in a careful manner, failing to report child deaths (thus breaking the law), and not accurately tracking juveniles put on probation.
DCS is required to keep data on foster care. The system is called the Adoption and Foster Care Analysis and Reporting System (AFCARS). A January 30, 2014 Children’s Bureau report revealed that a review of AFCARS data (for the week of April 22, 2103) the foster care data was incorrect, and the associate commission of the Children’s Bureau requested more information.
DCS continually uses confidentiality as an excuse to keep secret their corruption and incompetence. They lie, and children die. The children who don’t die in Department of Children’s Services’s care languish without permenance. Reports to a child abuse hotline go unanswered, and multiple reports are needed for Department of Children’s Services to take action even in households they already know to be abusive.
Department of Children’s Services has apparently made some improvement. The 2014 report by the Technical Assistance Committee found improvement (finally) by Department of Children’s Services. However, reading a Tennessean article about the report, it looks like the department meets their goals 50-60% of the time. In my book, even 60% is an F.
For more information:
[2] Phillips, Betsy (2012, December 4). The Tennessean catches Department of Children’s Services in another lie. Nashville Scene.
[7] Wadhwani, Anita. (2013, October 13). Families fight Tenn. Child agency for information. USA Today.
Governor Haslam Drops the Ball
Seriously, Gov? This is the best you can do? The SAME canned response you’ve been sending all along? You COULD look into DCS’ actions and coverup. You COULD make sure that your employees are doing their jobs. But this same canned response, over and over, is all you can manage?
From: <Bill.Haslam@tn.gov>
Date: June 24, 2014 at 9:43:39 AM CDT
To: <undisclosed recipient >
Subject: Responding to your message
Dear Friend:
Thank you for taking the time to write to Governor Haslam. We have also seen the recent news reports about this custody dispute that has resulted in a girl being taken from her foster parents and placed with a biological father who is out of state.
It is our understanding that these circumstances are a result of several different court cases. The Governor does not have jurisdiction or control over the decisions of courts and is not able to intervene in this tragic situation. DCS is required to follow the guidance and direction of the courts. This case has stirred deep emotions on both sides, and we hope the most appropriate resolution for this child can be found as it works its way through the judicial process. Again, thank you for your message.
Best Regards,
Don Johnson Deputy Director, Constituent Services
Did McCaul abandon Sonya, or not?
Yes, he did. From a moral standpoint, he abandoned her. But he also abandoned her from a legal standpoint. It looks as if, for some reason, the court erred severely.
In 2009 Appellate Court, the issue of abandonment was discussed. There are two important definitions of abandonment that could have applied. One applies if a parent or guardian is incarcerated at the time of the attempted termination of parental rights (TPR). In that case, the law directs us to look in the four months prior to incarceration. Did the parent visit or support the child during those four months?
Let’s see how this applies to McCaul. The petition to TPR was filed July 3, 2006. By that time, McCaul had been in prison three months. The 2009 appellate court document only lists his imprisonment date as April, 2006. To give him the benefit of the doubt, we’ll assume it was April 1, 2006. What was happening for the four months prior (December, 2005 – March 2006)? Was McCaul seeing Sonya or providing support? No, he wasn’t. And in April, 2006, he didn’t either. So whatever day in April he went to prison, he did not provide support or contact Sonya for the previous four months. There were two weeks during that period in which he was in jail (January, 2006) because he failed to appear in court. Even if we give him an EXTRA two weeks – the last two weeks of November, 2005, he did not provide support nor did he visit.
The Hodgins were caring for her while she was in DCS custody. Also during this period, the DSS hearing at which he could have simply showed up and claimed his child (or done so via attorney), in October, 2005, came and went without a word from McCaul.
It’s, thus, unclear to me why he did not meet that particular criteria for abandonment. In fact, he met BOTH criteria for abandonment.
Here are the two criteria for abandonment. The first is from the Tennessee Adoption Code (http://www.state.tn.us/tccy/tnchild/36/36-1-102.htm)
Here’s part (i), referred to above:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;
Correction: The previous version of this entry stated: “He was out on bond for a firearm charge during this period – facing many years in prison. If I were facing years in prison, and I cared AT ALL about my child, I would certainly be contacting her and supporting her.” However, the 2009 appellate decision that says he was arrested in 10/2005 and out on bond was incorrect. He was not arrested until 2006 on the federal charges.
The Child is the Center
There can be no keener revelation of a society’s soul than the way in which it treats its children. -Mohandas Gandhi
When I was a child, I had a good friend who had a difficult home life. One night, she came over to my house and told my mom and me that her mom had physically abused her. Mom checked her out, and she was physically OK, but she was definitely shaken and emotionally harmed. Our moms were both single moms, and they relied on each other and both took care of each of us. That night, my mom called the police to report her friend for child abuse.
It’s only as an adult that I realize how difficult it must have been for my mom to call the police and report her friend and neighbor, risking their friendship, Mom’s peace in the neighborhood, and my friendship with her daughter.
But my mom loved this child as if she were a daughter. So, for her sake, she did the right thing and called the police. Mom’s actions were courageous. She put the child first, over herself and over the other adult in the situation.
That’s what it means to be child-centric. It means putting the child first. I never would have thought I’d need to make an argument that we should put kids first. Strangely, though, there are those who argue, though not explicitly, that adults’ needs should come before children.
A Case Study
The Sonya Hodgin case, recently in the media, is an example of child-centric vs. adult-centric reasoning in child welfare cases. Sonya was with her foster-then-adoptive family for 8 years. Suddenly, however, the courts turned her over to her biological father, John McCaul, Jr., a stranger to her. (Read more about the case here).
A group of child welfare advocates who met during a previous high-profile case (Adoptive Couple v. Baby Girl), represent the child-centric view. We don’t have “skin in the game.” Most of us who are fighting to get Sonya home to her parents don’t even know the family (or didn’t, prior to the case). We simply heard of the case and knew that Sonya must terrified to have been removed from her loving home and handed over to a man she didn’t remember. Jessica Munday, a public relations firm owner who volunteered on Adoptive Couple v. Baby Girl, is once again volunteering her time to get Sonya home. Two wonderful attorneys, Kendall Sykes and Arathi Nobles, also are donating an unbelievable amount of time to the case. These are the people who care so much about children that they cannot sit by and watch while injustice harms children. People who are willing to spend their time and money to help a child they don’t even know.
How, you ask, could anyone NOT advocate that children are first? Let’s look at some of their arguments.
A Parent Deserves to Raise his Child, Even if He’s not Fit
John McCaul, Jr. is a violent career criminal. He may now be reformed and on the right path. I certainly hope so, for Sonya’s sake. Some people say that he’s paid his debt to society and should be given a chance to raise his daughter. Therein lies the difference between a child-centric and an adult-centric view. The adult-centric view focuses on the father’s needs – his wanting to raise his child. The child-centric view, however, focuses on Sonya’s needs. She lived with the Hodgins 8 years. In every way, they are her parents. Some of McCaul’s supporters argued, even after she had been with him only a few days, that she doesn’t miss her parents, doesn’t want to come home, and finally feels to be with the family who provided half of her DNA. They even said she didn’t miss her horse!
Doesn’t miss her horse
Biology is Best, and Time-Share Parenting
In an adult-centric view, biology is king. It’s true that our biological imperative, for our own needs or for the survival of our people, is to pass along our DNA. The adult-centric McCaul supporters, however, call biological parents “real” parents, which assumes that parents who foster for a long time, or who adopt, are not “real”.
The “Biology is Best” apologists believe that adoption is generally traumatic. They believe that, even for a child with no biological mother and whose father has been in jail most of her life, the biological father deserves to raise her.
They also believe that relatives should take care of children. And, generally, I agree. If there are loving, stable relatives who can and will take care of a child as soon as that child is in need, I think that’s the best option. (In Sonya’s case, her paternal grandmother was studied for placement, but DSS declined, keeping Sonya with the Hodgins). That being said, stability is essential for kids. If relatives can’t or won’t take care of the child immediately, the child needs care. If a loving, stable family steps up to care for a child in need for 15 of the past 22 months, and the biological parent can’t or won’t step up, s/he should lose her rights.
I was surprised in Adoptive Couple vs. Baby Girl how many of these same supporters thought it was just fine for the biological father to decide he didn’t want to take responsibility for 13 months (9 during the pregnancy and 4 thereafter) but come back for her later. But biology was most important to the adult-centric supporters. In their view, however long he waited, the biological father had a right to raise his daughter. How many other children would be left in the cold if potential adoptive parents knew a biological parent could take the child at any time, harming that child and devastating those parents? You cannot be a time-share parent. Parenting is 24-7.
I’m not saying that we shouldn’t attempt to reunify children with their biological parents when parents are ill. If parents have a problem, and they make diligent and consistent efforts to solve that problem quickly so the child doesn’t have yet another secure attachment severed, they should have that opportunity. I just don’t think that applies in the case of parents who are not ill but who willfully abandon that child. A life of crime is not an illness; it’s a choice.
A Child’s View Just Isn’t That Important
While McCaul was in prison, the Hodgins were caring for Sonya. Yet the other side calls them “child thie[ves]” and says an ex-felon would be better than the “thieves” to raise Sonya. There’s no regard for the idea that Sonya loves the Hodgins; they raised her for 8 years, and, regardless of what their legal relationship is, from her point of view, they are her parents.
In fact, they say “If I were in John[sic] shoes…I would fight you to the death, come hell or high water before I would lay down and let you take my child.” This is followed by “John has the God given right to raise his child, and he is!” Many of us would go to the ends of the earth for our children. Sometimes that means making painful decisions to give our child the best life possible. In McCaul’s case, that would have meant considering Sonya’s future when he was considering continuing his life of crime. John could have prioritized his infant, and gotten a respectable job. Instead, he chose the vocation of robbing people at gunpoint.
Child-centric Sonya supporters argue that she has a right to be with her parents, who raised her for 8 years, and who call her an adoptive child. The adult-centric camp says she was never adopted, since a voided adoption is like an adoption that never happened. Adult-centric McCaul supporters are more concerned with a legal definition of adoption. Child-centric Sonya supporters are more concerned with how she would experience life – 8 years with the same family, having been adopted and celebrating that adoption! We support the child’s rights over the rights of any other party.
A Child’s Voice Just Isn’t that Important
After Stephen Konig, a child-centric Sonya supporter made the argument that Sonya should be consulted, an adult-centric McCaul supporter said of this nine year old child that the courts can’t grant Sonya what she wants, and that “if adults are doing their job, they are making choices based on the best interest of everyone, including a child.”[v] (bold added.) On first reading, that seems reasonable. A child-centric supporter would say almost the same thing, except that the sentence would change “everyone” to the “the child.” The sentence should end there. “The best interest of the child” should be the sole consideration.
One thing that would happen in the best interest of a child in any court case with a child who’s capable of stating her opinions and ideas, is that parties involved would talk to the child! No one suggests that a nine year old should make the absolute decision about where she should live. But she should be consulted! The question need not be, “Sonya, where do you want to live?” Good parents treat their kids with respect, including asking their opinions. These are life-altering decisions, and the child should be consulted. That’s being child-centric.
When Sonya was turned over to McCaul, she was crying. The police were present. There are guidelines for transitioning a child from one family to another, which involves gradual contact with the new family, with the known family present at first. None of those guidelines were followed. In fact, the Tennessee Department of Children’s Services put nine year-old Sonya in a hotel room with McCaul! Remember, she didn’t know him. The court was adult-centric in its decision to suddenly order Sonya’s turnover. For whatever reason, they valued McCaul’s right to parent, but didn’t value Sonya’s civil rights even slightly.
Conclusions
If we neglect and abuse children, our society is doomed. Kids have so much potential. We must help them have loving, stable families so they can reach that potential. Any consideration of the adults in the situation have to be subordinate to the rights of the child.
I’ll end with this quote from John Simmons, who makes a child-centric statement. “I am not “for” international adoption. I am not against it. I am “for” children having loving parents and being in homes where they have a support network.”[vi]
Bonnie Cleaveland, PhD, Psychologist
Suddenly, a new family
Two recent high-profile cases have caught the attention of child welfare activists. One of the primary reasons for the substantial media attention to both cases has been the sudden nature of the transitions. It’s obvious even to non-professionals that a child shouldn’t be plucked from one family and dropped into another without time and procedures for adjustment. Let’s try something.
If you didn’t know anything about children and their development, but you had to be in charge of a child’s transition from a foster family the child has been with and loves to another family that child didn’t know, how would you do it?
- Right after the judge’s decision, have the police come to a meeting with both families. Despite the child’s protests of not knowing the new family, and wanting to stay with his or her family, turn the child over within a few hours.
OR
- Make the transition over weeks or months. Start with phone calls, then visits in neutral locations with both families present, letting the child express his or her feelings and having a mental health consultant present. Allow both families to be present in the child’s life.
If you answered B, you have common sense! I don’t really think we need much research to understand that B is the only reasonable answer. And, in fact, this is probably the way that most transitions from foster care work.
“Once the child attaches to a caregiver and that caregiver has become the psychological parent, it is crucial that the transition from the caregiver’s home be as emotionally protective as possible. Poorly executed or improperly timed transitions may adversely impact a child’s healthy development as well as the child’s continuing capacity to attach to others.”[1]
Obviously, if a child is in a psychologically or physically dangerous situation, an immediate transfer is necessary. In the recent cases, though, a child was transferred from one loving family to another, under court order, without any transition time. The abrupt transition puts children at serious risk of mental health problems, including Reactive Attachment Disorder or Post Traumatic Stress Disorder.
The cases
In 2011, when she was two years old, VC was transferred to her biological father from the family who had raised her since birth. (For more information, see http://tallasthesky.com/?cat=12). The transfer occurred soon after a court hearing, with little warning and no transition ordered by the court. In the second case, 9 year-old Sonya Hodgin, who had been with her foster and adoptive family about 8 years, was turned over with two hours notice to her biological father, with whom she had had no relationship. Police were present, and Sonya was begging not to let him take her.
Now, there are clearly exceptions to a gradual transition, and the best interest of each child should be taken into account each time. This means that Child Protective Services workers, attorneys, judges, guardians at litem, and attorneys ad litum should understand a child’s situation. These are children’s emotional lives at stake. The transition should never be dramatic just because the court battle has dragged out.
When a babysitter comes over, you give him or her instructions on what to do. When’s bedtime, the child’s routines, what the child is allowed and not allowed to do, what allergies s/he has, information about special needs or medical conditions. Think how much more information should pass between parents in a permanent transition situation. Parenting coordination has been developed as a discipline to help high-conflict parents implement their parenting plans.[2] Professionals are available to help with transitions, and they should be consulted.
Healthy Transitions
Let’s look at what’s standard practice and what the research says about how children should be transitioned.
A simple factsheet from www.childwelfare.gov provides some information for foster families transitioning to adoptive family.[3] Even a child remaining within the same home, but making the transition from foster care to adoption, needs help with the transition. The factsheet recommends helping a child understand her life history and path forward, and giving her implicit and explicit permission to love both families.
Henry (2005) outlines a model for transitions from foster to adoptive care, which could serve as a model cases like VC’s case and Sonya’s case. Her model lists five steps. First, a child should be given notification of a move over a period of weeks. Second, a visit should occur in the existing home for two to three hours with both families present. Next, two to three visits within 1-3 days of each other should occur with the newer family outside the home. After that, 3+ four- to six- hour visits at the new home should occur within a week. Finally, 4-6 overnight visits in a period of two weeks complete the transition period. Of course, the child’s individual circumstances, adjustment to the transition and development level should be taken in to account. Had Henry’s (2005) guidelines been followed, both children would have had much less stress in the transition and less risk of psychological harm.
Children who don’t have a stable family life have enough stress without dramatic transitions. Our court system, and our child protection agencies, need to do better for children.
[1] Advokids: A Legal Resource for California Foster Children and Their Advocates. http://advokids.org/resources/childhood-mental-health/transitions/
[2] Greenberg, E. (2010, January). Fine Tuning the Brainding of Parenting Coordination. Family Court Review 48(1), 206-2011.
[3] Children’s Bureau (2012). Helping Your Foster Child Transition to Your Adopted Child. www.childwelfare.gov.
Why we Fight
I’m proud to serve with a dedicated group of volunteers working for child welfare. We came together because of the Adoptive Couple vs. Baby Girl case, and we’re fighting together again to Bring Sonya Home. We don’t have a name, or a charter, or a meeting place. We do have members with very different talents – we’re designers, photographers, child welfare advocates, attorneys, PR professionals, stay at home moms, and psychologists…. We’re white and brown and all colors in between—and biological parents, adoptive parents, and non-parents. We’re liberals and conservatives. We’re Christian, Buddhist, atheist, Hindu, Jewish, and we’re all over the country. It’s a group that may not be put together for any other cause, but fighting for these two little girls has bonded us.
Our group grew organically out of a case that outraged people across the country, and even throughout the world. It grew primarily through Facebook. And many of us, though strangers before the battles, have found wonderful friends who share our values.
Our first case
In Adoptive Couple vs. Baby Girl, a child whose biological mother hand-picked an adoptive couple after the biological father refused to support the child, but four months later, changed his mind. He took the child when she was two. The case ascended all the way to the Supreme Court of the US, which returned her to her adoptive parents when she was four.
The second case
Our second case started three months after the happy resolution of the first case. Nine year-old Sonya Hodgin of Dickson, TN had a pretty rough first year of her life, being passed around to various caregivers. She settled, though, with Kim and David Hodgin, and was with them for eight years. Her parents adopted her while her biological father was in prison; his rights were automatically terminated because he was serving a 15 year prison sentence. However, when he testified in a murder investigation and his sentence was reduced to 7.5 years, the adoption was reversed and, after he got out of prison (and a few years after that) the courts ordered the nine year old Sonya turned over to him, though she had never spent any time with him since she was an infant.
Our work
I can’t speak for everyone in the group – again, we have no stated mission or any sort of organization, but I think the unifying principle is that we want children’s rights to be considered above any adult’s right in every single custody, foster or adoption case. We’re child-centric. When a transition from a stable, loving home is necessary, the child’s mental health should be considered every time, and a gradual, sensitive transition should occur.
Democracy
Interestingly, as our group of volunteers came together on these two cases, a core, but smaller, group of activists formed on the opposing side of the issue, advocating for the fathers in both cases. The internet has been a major force for organization on each side. Facebook seems to have been absolutely essential in our communications, allowing us to work in unison. Petitions on Change.org ensue. Our messages have spread quickly through our social networks, and the populace gets to decide how it feels about each case.
As a group, we write to politicians and bureaucrats. Although political systems are often corrupt, there is still influence in numbers, and politicians listen when their voters speak. It’s the beauty of the intersection of the democratic system with Facebook. We can disagree, and do it in a civil manner, using facts to bolster our opinions.
In Adoptive Couple vs. Baby Girl, our activism literally changed case law, and made it more likely that Native American children will be treated not as property of the tribe but as people who deserve their rights to be considered first. We hope that our activism in the Sonya Hodgin case will, similarly, encourage the courts to always consider the best interest of the child first in every case, every time.
Bonnie Cleaveland
Charleston, SC
ICWA – The Law of Unintended Consequences
In a recent blog post on the National Council for Research on Women, Dr. Laura Briggs asserts that the feminist attorneys who sided with the adoptive father in the Baby Veronica case were misguided. I disagree with Dr. Briggs’ assertion[1] that feminists are “on the wrong side” of the Adoptive Couple vs. Baby Girl case. The amicus brief Dr. Briggs cited, by Joan Hollinger and Elizabeth Bartholet, made the legal case that an “unwed mother with sole custody of her children should have a due process right to make decisions concerning her children”[2]. They noted that, in most states, a biological link between unwed father and child doesn’t define a parent. Instead, an actual relationship between father and child is required. Those ideas make sense, and, in fact, The Supreme Court of the United States (SCOTUS) thought so, too. [3]
Here’s why the Supreme Court’s ruling is good for women:
- The Baby Veronica SCOTUS ruling improved biological parents’ abilities to choose adoptive placements for their child.
- The Indian Child Welfare Act of 1978 (ICWA)[4] has the unintended consequence of harming Native American children. The best interest of the child should be paramount in every custody case every time.
- The ruling also made it less likely that a parent can change his or her mind late in the adoption proceedings and claim a child she or he had previously relinquished.
The facts of the case
But first, let’s review the facts of the case. Christinna Maldonado, a non-native (and part Hispanic) single mother of two became pregnant by her fiancé, Dusten Brown. However, she ended the relationship while she was pregnant. Ms. Maldonado asked for support for the baby, but Brown demanded that she marry him, or he would not pay support. She declined. They communicated via text, and she asked him if he would rather pay child support or relinquish his rights. He decided to relinquish his rights and did so legally. Maldonado identified a South Carolina couple, Matt and Melanie Capobianco, and an open adoption resulted. After Veronica had been with her adoptive parents four months, Brown changed his mind and decided he wanted to raise his daughter.
Court battles in SC ensued, and eventually the court ruled that two year-old Veronica must be turned over to her biological father, Dusten Brown. On December 31, 2011, SC adoptive parents Matt and Melanie Capobianco handed 27-month old Veronica to Brown, and they continued their litigation. The SC Supreme Court ruled that he was not considered a parent because he didn’t attempt to take responsibility for his biological daughter until she was four months old. Even so, because of the ICWA’s additional protections to Native American peoples, Brown would maintain custody of Veronica.
Subsequently, however, the Supreme Court of the United States (SCOTUS) ruled that ICWA did not apply to Dusten Brown because he had never had custody and was therefore not an existing Indian family.
SCOTUS remanded the case to the Supreme Court of South Carolina, which directed the Family Court to immediately finalize the Capobiancos’ adoption of Veronica[5]. The Family Court finalized the adoption on July 31, 2013, approving a week-long transition plan for Veronica to make the transition as smooth as possible. However, Brown did not show up for the transition plan and made clear that he would not turn Veronica over, despite being arrested for Custodial Interference.
The Law of Unintended Consequences
The Baby Veronica case revealed two tragedies of the unintended consequences of ICWA. In this case, the law gave a shirking dad more rights than a biological mother. Second, despite aiming to help Indian children, ICWA unintentionally harms many children. [6] [7]
Parents should be able to choose adoptive placements for their children and native children should have the same rights as non-native children. However, under the ICWA, Native American children have fewer rights.
Put this in personal terms. If you had a child to be placed for adoption, and the father was uninvolved, you would want to choose the parents of your child. You would have that right… but ONLY IF you created that child with someone whose lineage couldn’t be traced back to certain Native American people. If the biological father were Indian, even if not involved in a tribe or enrolled in a tribe, the tribe can step in and determine “best interest” for your child.
More shocking is that even if both parents (Indian or not) chose and agreed upon an adoptive placement for their child, the tribe must be notified and may step in to deny the placement chosen by the parents and place a child an in Indian home. ICWA lays out specific placement preferences. “In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”
Even more shocking, if you were to be raped, decided to place the child for adoption, and the biological father is an enrolled Native American, the tribe can step in determine where the child is placed, including with the “father’s” family!
Do you think it’s unlikely that a tribe would ignore parents’ wishes? You’d be wrong. It happens in infant adoption cases, and it happens even when children are older. The tribe has claimed children in numerous cases, several of which are high profile. Fortunately, in many cases, appeals courts overturn the tribe’s attempts to take a child.[8] [9] [10] [11][12] [13] [14] [15]
When SCOTUS ruled in Adoptive Couple v. Baby Girl that ICWA doesn’t apply to a child who was never in an “Indian family,” a non-native mother will actually, finally, be able to choose a placement for her infant child without interference from an Indian tribe.
ICWA is meant to provide special protection to Indian Children. Instead, it places specific burdens on Indian Children. [16] Unfortunately, too many cases have shown that the tribe is more concerned with keeping its children than with keeping its children safe.[17] [18] Because of the shortage of Indian foster and adoptive homes[19] [20] [21], Indian children are often placed with known substance abusers or known sexual and physical abusers who are Native rather than a safe non-Native home.[22] [23] [24] [25] [26]
Why would the tribes place Native American children in harm’s way? It’s chilling to realize that the courts have interpreted ICWA to mean that the best interest of an Indian child is different from the best interests of other children. What we might think of as best interest of a child, such as a stable environment, basic necessities, and lots of love and attention, is not what ICWA means by best interest. For example, consider the following in a case before the Montana Supreme Court. “…(W)hile the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child’s bestinterests to be placed in accordance with the statutory preferences.”[27]
The ruling protects adoptions, and, as a result, children
In order for domestic adoptions to be a viable course of action for giving needful children homes, it’s important that parents not be able to change their minds after a child has bonded with his or her adoptive family. For example, one NA biological mother who voluntarily relinquished her infant for adoption attempted to regain custody two years later.[28] Even if unsuccessful, this sort of legal battle places serious financial and emotional burdens on both families and, therefore, the child.
Dusten Brown didn’t want responsibility for Veronica. He signed away his rights. But then, inexplicably, when she had been with her adoptive family four months, he wanted her. Under SC law, he would have no rights because of abandonment and because he signed legal papers relinquishing his rights. Had Brown not been a member of the Cherokee National of Oklahoma, there would have been no invocation of ICWA. Without ICWA, when he abandoned his child and signed away his rights, Veronica would have been happily adopted in SC with the Capobiancos, her birth mother, and her half-siblings, in a lovely open adoption.
Bonnie Cleaveland, PhD is a licensed clinical psychologist in private practice in Charleston, South Carolina.
Footnotes
[1] Briggs, L. (2103). Feminists and the Baby Veronica Case. Retrieved from http://www.ncrw.org/public-forum/real-deal-blog/guest-blog-feminists-and-baby-veronica-case
[2] Hollinger, et al. Amicus Brief Adoptive Couple v. Baby Girl U.S. 12-399 (February, 2013)
[3] Adoptive Couple v. Baby Girl, 570 U.S. (2013)
[4] Indian Child Welfare Act, 25 U.S.C. (1978)
[5] Adoptive Couple v. Baby Girl, 731 SE 2d 550 – SC: Supreme Court 2012
[6] (2013, June 30). Indian child welfare laws should be for children. The Bismarck Tribune.
[7] (2013, February 5). Native Americans; For sake of a theory, law tears at adoptive families. The Atlanta Journal-Constitution.
[8] Adams, B. (2010, September 28). Navajo Nation can’t fight adoption of tribal kids. The Salt Lake Tribune. Retrieved from http://www.sltrib.com/sltrib/home/50372614-76/navajo-nation-state-child.html.csp
[9] McCarty, M. (2010, July 4). ‘Don’t take my child,’ a mother begs;
A California woman prepares for a custody battle with a Dayton man. Dayton Daily News. Retrieved from http://www.daytondailynews.com/news/news/local/dont-take-my-child-california-mother-begs/nNFCC/
[10] Klien, G. (2009, August 15). Mother invokes Indian law in victory over Marin child welfare authorities. Marin Independent Journal.
[11] (2008, December 16). Couple to appeal for return of Indian baby. South Jordan, UT.UPI.
[12] (2007, August 29) Children, Discrimination and the Indian Child Welfare Act. U.S. Newswire.
[13] Dvorak, T. (2005, July 6) American Indian mother frustrated by laws that let tribe block adoption. The Associated Press.
[14] Miller, J. (2004, September 3) Applicability of Indian Child Welfare Act to private adoption explored by NYC family court. The Daily Record of Rochester.
[15] (2013, July 15). Whiteshield Pleads Guilty in Death of Spirit Lake Toddler. Valleynewslive.com. Retrieved from http://www.valleynewslive.com/story/22622418/update-lawmakers-calling-for-action-in-spirit-lake-child-death
[16] (2007, October 9). A Tribal Question;
Native American children should not be harmed by a law intended to preserve Indian families. The Washington Post.
[17] Williams, T. (2012, September 19). A Tribe’s Epidemic of Child Sex Abuse, Minimized for Years. The New York Times. Retrieved from http://www.nytimes.com/2012/09/20/us/us-steps-in-as-child-sex-abuse-pervades-sioux-tribe.html?pagewanted=all&_r=0
[18] Williams, T. (2012, July 7). Officials See Child Welfare Dangers on a North Dakota Indian Reservation. The New York Times. Retrieved from http://www.nytimes.com/2012/07/08/us/child-welfare-dangers-seen-on-spirit-lake-reservation.html?pagewanted=all&_r=0
[19] (2012, July 15).Race Should not be Overriding Factor; In Adoption Process, only one Cultural Identity is Key. The Daily Oklahoman.
[20] (2012, March 28) Goveror Susana Martinez: Foster Care System Needs More Native American Foster Families. States News Service.
[21] (2004, September 4) Indian children need foster care. Deseret Morning News. Retrieved from http://www.deseretnews.com/article/595089155/Indian-children-need-foster-care.html?pg=all
[22] Collinsworth, A. (October 4, 1997). Report details child’s abuse, death. Edmondsun.com Retrieved from http://www.edmondsun.com/local/x519222174/Report-details-child-s-abuse-death.
[23] Kelly, A. (2011, January 27). Hearing in foster child’s death yields no decision about trial. The Oklahoman.
[24] Cunnif, M. (2008, April 4). Toddler’s Killing by Convict Leads DSHS, Yakamas to Update Caregiver Policies. Spokesman Review.
[25] Manson, P. and Sanchez, J. (2008, February 20) Abused siblings now have loving home – and $1 million from feds The Salt Lake Tribune. Retrieved from http://archive.sltrib.com/article.php?id=8310879&itype=NGPSID
[26] Clay, N. and Ellis, R. (2007, October 4). U.S. law pushed boy home before he died; Tribe fought state’s move to cut mom’s parental rights. The Oklahoman.
[27] In re CH, 997 P. 2d 776 – Montana Supreme Court 2000.
[28] Harrelson, G. (2007, May 4). A case of two mothers. St. Paul Pioneer Press.
Nine year old girl sent to live with violent felon
A nine-year old Tennessee girl, Sonya Hodgin, needs our help. Sonya lived with her father in Nebraska. However, her father, John McCaul, owned a gentleman’s club and was rarely home. Sonya had a caregiver who, when she had a family emergency, took Sonya to Tennessee. She had McCaul’s permission to do so. It was only after several months, when they hadn’t returned, that McCaul wanted his baby back. Sonya was cared for by David and Kim Hodgin much of that time, though Sonya didn’t live with them. The Hodgins reported the caregiver’s parents to the Department of Children’s Services (DCS) because the house was unsafe for children. DCS took custody of Sonya and placed her with the Hodgins.
Meanwhile, Sonya’s biological father, a violent career criminal, was in prison in Nebraska, sentenced to 15 years for three counts of felony robbery and possession of a firearm by a felon. In Tennessee, when a child is under the age of 8 and a parent is sentenced to 10 or more years in jail, parental rights are automatically terminated ((TN Adoption Code Chapter 36-1-113 (6)). The Hodgins adopted Sonya while he was in prison, when she was 4 years old. However, when her biological father cooperated with a murder investigation, his sentence was reduced from 15 years to 7.5 years. Still, his rights had been already terminated and the adoption was complete.
In 2009, the court overturned the adoption. The reason the termination was invalidated by the appellate court is that the parties had agreed to try the case on one issue: abandonment. Abandonment is a different ground than being incarcerated for more than 10 years under TN law. The trial court had declined to terminate on the grounds of abandonment and terminated under the grounds that the biological father was serving more than 15 years. On appeal, the biological father argued that he wasn’t given notice to defend on grounds other than abandonment, and, had he known, he would have brought up his sentence reduction.
Through all of these appeals, Sonya stayed with the Hodgins, while custody remained with CPS.
Sonya was with the Hodgins until January 29, 2014. With police intervention, Sonya, with only a few hours notice, was turned over to her biological father, a “violent career criminal” who was essentially a stranger to her. They spent a night in a motel, then returned to Nebraska, where she remains today.
Can you imagine how scary it’d be to be Sonya – 9 years old, and turned over to stay in a motel room with a man you’d only spoken to once? And then taken from your life with your family to live across the country with strangers?
What happens to all the other children in foster care who might get adopted, but whose foster parents think the biological parent might be able to overturn the adoption? Do we, as a society, really want children in stable, loving homes – who’ve been there most of their lives, turned over to violent career criminals?
Please, go to www.bringsonyahome.com and sign the petition to bring this sweet girl back to her family!