A highly stringent legal regime in America deprives many individuals of the right to bring up their children
By Seth Freed Wessler
The laws permitting termination of parental rights were mostly written in an era when serious mental illness was assumed to disqualify patients from participation in normal life, including parenting. In many states, the mentally ill or intellectually disabled could be sterilized. Indeed, a 2012 presidential commission report found that “parents with psychiatric disabilities experience the most significant discrimination when they attempt to exercise their fundamental right to create and maintain families.”
“When [mentally disabled] people were institutionalized, they could not keep their kids. Now they’re living on their own, and they’re not allowed to keep their kids,” said Patrick Yewell, who recently retired from a career as a foster care caseworker, supervisor and administrator in Kentucky’s child welfare system.
Rudy, a 42-year-old West Indian-born man in the Bronx, New York, was also denied custody of his daughter. His chance to raise her now rests largely on a psychiatrist’s evaluation consisting of two visits and a review of Rudy’s records.
Rudy has long struggled with chronic bipolar disorder, for which he has been repeatedly hospitalized. Rudy is also intellectually delayed—an IQ test placed him at the borderline of intellectual disability.
He has no history of violence, abuse or neglect. His only child, J, who is now 3, was removed from the hospital immediately after she was born and placed in foster care. Rudy has been asking to be allowed to raise his daughter with help from his mother and sister. Authorities first took J because of significant concerns about her mother. J’s mother, from whom Rudy had separated before J was born, had already lost three other children to foster care. One of the children removed from J’s mother and placed in foster care later died at the hands of a relative of J’s mother. And like Rudy, J’s mother suffers from mental illness and intellectual delays.
On June 28, 2010, Rudy watched as two Nassau County caseworkers and a cop walked out of the hospital with 4-day-old J. (ProPublica confirmed details of the case through court documents and multiple interviews.) Rudy, who has closely cut hair and often dresses in baggy sports jerseys, recalls the day his daughter was taken as the saddest of his life. “I asked them why they took my daughter, and they didn’t respond,” Rudy remembered in a soft stuttering voice with an accent left over from his childhood in St. Croix. “I asked them if I could hold her before they took her, and they wouldn’t let me hold her.”
Rudy began what would become a weekly ritual: Riding two trains and a bus every Tuesday from the Bronx to Long Island to spend 75 minutes with J in a room in the county child welfare office. Some caseworkers were suspicious of Rudy. “The major concern for the family is both parents’ mental health issues,’ child welfare officials wrote in a court document.
Others described him as a loving, if inexperienced, father. One caseworker note from a visit in Septem-ber 2011 described Rudy as “gentle and caring,” rocking J to sleep on the couch at the county office. Two weeks later, a different worker wrote that he was “getting more adept at caring for the child.” J’s mother, meanwhile, stopped showing up for visits and failed to appear in court.
But just over a year after J was first placed in foster care, two Nassau County officials pulled Rudy into a meeting room after a visit with J and told him that the county planned for J to be adopted by her foster family, case documents show.
“They said I have a mental illness, they were trying to see if I would sign away my rights,” Rudy said as he sat one recent evening in his Bronx apartment, a pot of rice steaming on the stove. “They expected it to go smoothly; they expected me to surrender my rights.”
In New York, counties are required to appoint an attorney for parents at risk of losing their kids, but Rudy hadn’t yet been given one. Unsure of what was happening; Rudy went home and called his sister Rubeka, in Tampa, Florida.
“He sounded really upset. Not really angry, but more hurt,” said Rubeka, who works as a psychiatric nurse.
Rudy, intellectually challenged, has no history of violence, abuse or neglect. But his only child was taken away from hospital after birth and placed in foster care.
Rudy and Rubeka consulted a lawyer and came up with a plan in which Rudy would move in with his sister and mother in Florida so they could raise J together. J’s mother, who was also facing the termination of her parental rights, and whose mental health, according to case notes, was deteriorating, agreed to the plan. (J’s mother declined to discuss the case with ProPublica, except to say she supported Rudy’s effort to get custody.) But Nassau County officials told Rudy that he should have laid out the plan months earlier and that because so much time had passed, federal child welfare law required them to request termination of his parental rights. The county’s records suggest that caseworkers had warned Rudy about this; Rudy said he did not understand he could lose his rights so rapidly and that he waited because he believed J’s mother was going to regain custody. Caseworkers also noted that visits between Rudy and J had gotten harder as she grew older—she would often cry inconsolably; she knew her father only as the man she saw on Tuesdays and considered her foster parents her real mother and father.
But these were not the reasons Nassau County authorities listed when they petitioned a county court to sever Rudy and J’s legal ties. Instead, the county filed to terminate his rights based on his mental illness. Under New York law, parents can lose their children if courts decide their mental disabilities render them incapable of parenting for the “foreseeable future”.
The Nassau County Department of Social Services would not respond to questions from ProPublica about the case or any related policy issues. The county referred ProPublica to the New York State Office of Children and Family Services. That office declined to comment as well and referred us back to Nassau County.
In the summer of 2012, a judge sent Rudy to Dr. Joseph Scroppo, a psychologist and attorney who has held appointments at several New York universities. Scroppo has a contract with Nassau County to perform forensic psychological evaluations and make recommendations about whether parents should keep their children.
Scroppo’s evaluation was exhaustive compared with many in other parental rights cases. He met with Rudy alone for nearly 10 hours. Then Scroppo watched Rudy interact with J for 30 minutes. He gave Rudy an IQ test, asked him to define words, stack blocks and read a few sentences. He reviewed Rudy’s mental health records, including his hospitalizations for manic episodes, and case notes from the child welfare department. Scroppo concluded that Rudy could not be trusted to raise his daughter.
Rudy’s “score indicates that he is probably capable of semi-independent living but would experience significant problems if he were to attempt fully independent living,” Scroppo wrote. Citing Rudy’s hospitalizations, Scroppo concluded that Rudy ‘is now, and for the foreseeable future, unable to adequately care for the subject child.”
During a hearing in May 2013 in Rudy’s continuing parental rights case, Rudy’s lawyer, who was appointed to the case when the county filed for termination, grilled Scroppo on his evaluation.
“Your testimony…suggested that [Rudy] would have difficulty functioning fully independently; is that correct?” Rudy’s lawyer, Lauren Broderick, asked.
“Yes,” Scroppo replied.
“[But] wasn’t it your understanding that [Rudy] was cooking his own meals at the time of your evaluation?” Broderick said, looking down at her notes.
“I’m not sure whether he was cooking his meals or not,” Scroppo said.
“Did you inquire?” Broderick asked, looking up.
“No, I did not,” he said.
“Wasn’t it true at the time of your evaluation that [Rudy] was paying his bills?” she went on. “He was responsible for his own hygiene?”
“As far as I knew, yes,” Scroppo said.
Broderick continued to push Scroppo to offer evidence from Rudy’s life. Instead, Scroppo said, “I based the [categorization of] semi-independent status on the test that I administered to him.”
New York’s law allows mothers and fathers to present alternative evaluations in court, though funding is not always made available to pay for them. Rudy’s sister and brother scraped together several thousand dollars to hire an evaluator for a second opinion. Dr Barry Rosenfeld, a psychologist who directs clinical training at Fordham University, did not just administer tests. He spoke to the people in Rudy’s life to get a better sense of him—and pieced together a very different picture.
He discovered that in the early 2000s, Rudy shared an apartment near Tampa with Rubeka and their brother Mitchell. Mitchell had a baby boy and Rudy would take care of him. “My son was around 3 or 4. We’d go out for the night, or on the weekends, and Rudy worked less than us, so we’d leave my son with him,” Mitchell said recently over the phone from Florida.
“I never had any worries about that.” Rosenfeld learned from Norma Gonzalez, a caseworker who’d met regularly with Rudy in the apartment building where he lived when J was born, that “[Rudy] successfully manages his own day-to-day needs and has done so consistently for 3 years.”
Rosenfeld noted that Rudy’s plan to raise J with his sister indicated not incapacity, but a responsible recognition of his own need for help. “There appears to be no evidence that [Rudy]… is unable to adequately plan for care for his daughter,” he wrote.
ProPublica asked a third party to read the two evaluations and to assess the soundness of their methods. Maurice Feldman, a psychologist based at the Centre for Applied Disability Studies at Brock University in Ontario, Canada, researches parenting capacity evaluations. He said that the two evaluators relied on different methods and assumptions.
Scroppo’s evaluation didn’t take into account the help Rudy planned to have from his family; Rosenfeld’s did. “The first evaluator makes the assumption of the scenario that the parent has to parent the child totally independently,” Feldman said. Feldman also said that even though Scroppo’s report was relatively thorough, it exhibited a common flaw: It measured mental disability in isolation from its impact on parenting.
“There is a conceptual leap that the first assessor used,” Feldman said. He concluded that because Rudy scored “low on cognitive and personality disorder measures, therefore he can’t parent,” Feldman said. “But that is a fallacy.” “There is nothing in the first evaluator’s report, none of the materials cited, that would lead me to believe he can’t take care of his daughter.”
Scroppo declined to speak with ProPublica about Rudy’s case. But he did speak in broad terms about mental health evaluations in child protective cases, which make up a significant part of his practice. “Evaluators are tasked with evaluating the specific parents, not the support system or other persons in their lives,” Scroppo explained. “It’s driven by the fact that only the parent is going to have ultimate decision making over the child. Although the parent may have—and I think it would matter if they did—a team to help them, it would hinge on their ability to be responsible. The law is for me to look at the parent in and of herself.”
Academic studies have found that mental health parenting evaluations often take this self-sufficiency view of parenting. But as Feldman argues, “Nobody raises their child in a vacuum.”
The American Psychological Association guidelines actually encourage evaluators to reach out to “extended family members and other individuals when appropriate (e.g., caretakers, grandparents, clinical and social services providers, and teachers).” Yet often that doesn’t happen.
One reason evaluations come up short is money, said Nicholson, the Dartmouth
psychiatry professor who researches parents with mental illness. “Really thorough evaluation is pretty resource-intensive, and nobody wants to do them,” Nicholson said. “Nobody can actually afford that.”
Even Scroppo agrees that these cases can be hard calls: “The severity of the mental illness is important in making any determination. And sometimes the line is not clear.”
When Rudy is well, he is soft-spoken and thoughtful. “I am really focusing on being a father to my daughter. My dad was a good dad—he worked hard, he took care of us, and I want to do the same thing for my daughter,” Rudy said last fall, after returning from work at the grocery store where he stocked shelves.
He also knows he would likely struggle to raise J by himself. Rudy has bouts of numbing depression and high-paced mania. At their worst, Rudy’s manic states can flare into delusions. The last time he was hospitalized was in the winter of 2013. He and his sister Rubeka say the stress of the case, and the threat of losing his daughter, finally overwhelmed him.
But raising J alone, of course, hasn’t been the plan. “If he slipped into an episode, we would know it,” Rubeka says. “We would have been there to support her together.”
Rudy acknowledges there are no easy answers nor perfect endings. The case has now dragged on for nearly four years. J has “been in foster care for a long time,” Rudy said. “It will be hard to take her out of foster care. [The Department of Social Services] is saying that she bonded with the foster mom. It’s a tough case, you know.”
When authorities take a child, a 1997 federal law mandates that they must provide parents with access to the programs and services they need to reunite with their children. If the issue that brought a child into foster care is homelessness, child welfare systems must find parents housing. If it’s drugs: treatment. If it’s abuse: parenting classes. But the law does not explicitly cover disabilities, mental or physical.
In New York, courts can relieve child welfare departments of having to prove they have made efforts to reunify families if judges deem a mother or father too mentally disabled to parent. That has been Nassau County’s position regarding Rudy. But without setting up supports and services, there may be very little way to know whether a parent can raise a child. Rudy was not offered parenting classes or help moving to an apartment where J could join him.
—Published courtesy ProPublica.
(This is second part of the article on parenting rights)