Editor's note: This is the fourth in a six-part series of in-depth columns by columnist Issac J. Bailey to examine a Conway father's two-year struggle to bring his daughter home from a New York foster home.
The day more than two years ago Johnny Smith received a call from New York telling him his daughter had been badly hurt, he was also told not to bother trying to see her until a hearing two months later.
New York officials were moving forward with the use of a federal law called the Interstate Compact on the Placement of Children, which meant his right to care for his injured daughter was no longer his.
"They said she was in protective custody and I wouldn't be able to see her because of the trauma," Smith said.
The child's mother did not respond to several attempts to get her comments on the case.
ICPC was enacted to provide a uniform standard for placement of children in foster care across state lines, said Vivek S. Sankaran, director of the Child Advocacy Law Clinic at the University of Michigan Law School, who is considered one of the country's top ICPC experts. The intent was a good one and the law can provide good information for child protective services officials to make informed decisions about home placements, he said.
But he and other national child care advocates and reformers said cases such as Smith's highlight the need to reform the ICPC and that more parents need to be told that biological ties or raising children for years or even from birth are not bulwarks against the legal obstacles ICPC has presented Smith.
"This is a huge problem that there are kids in foster care who have families that are willing and able to take care of them," Sankaran said. "This problem is increasing in scope. Not only are we hurting kids, we are keeping kids in foster care and it is costing us money. I am becoming more convinced that federal oversight of this is the only way this will be solved."
South Carolina and New York officials said once an ICPC request is denied by another state, they cannot make the out-of-state placement. In Smith's case, that means the finding of an Horry County DSS case worker guaranteed New York would not allow his daughter to come home.
Child advocates have compiled a list of such cases occurring throughout the country:
A 1-year-old girl was removed from her mother in New York and sent to live with relatives in South Carolina, which the state initially approved. The mother's parental rights were terminated and New York asked South Carolina to do another home study as part of adoption proceedings.
"This time ... the person who had been caring for the child was originally rejected as too poor and not owning a car," said Judith Waksberg, director of the Appeals Unit of the Legal Aid Society in New York. "Later, South Carolina added that this relative had had an indicated neglect case, although the validity of that charge was disputed and none of the children in the home, including this child, were ever removed. Although other relatives of the child came forward and volunteered to care for her, South Carolina rejected them as well. One was rejected for insufficient income and high debt.
"...Apparently South Carolina thought it would be better for this child to be sent off to New York where she had no family to be put in the care of an as yet unidentified foster parent than to allow her to remain in South Carolina where most of her family, including her siblings, were," Waksberg said.
DSS officials said they don't deny placement or remove children from their homes because of poverty.
An Alabama mother who lost her children because of neglect was awaiting the return of her children. She had completed all the services the court required, obtained adequate housing and moved closer to family members, where she'd have more support. In the fall of 2006, a court ordered an "expedited" ICPC package. After a delay, a court issued an order directing the social services agency to forward the ICPC within 20 days.
Alabama received the package on Feb. 20, 2007, where it languished for so long a court intervened, but to no avail; the mother was killed in a car accident waiting for the process to be completed, before she could see her children again.
"I have no idea how often this is happening, but I suspect it is much higher than we think," said Sankaran, who kept some of the stories above on file. "I say this based on horror stories I hear from practicing attorneys all across the country. But it's hard to get stats on this. I used to collect the stories I gathered on this issue but stopped because there were too many."
Between July 1, 2009, and June 30 of this year, South Carolina received 1,329 ICPC requests from various states. Of those, 607 have been approved, 283 have been denied, and the others are under review.
Sankaran wants to modify the law and add a judicial process in which parents can challenge the findings of an ICPC home study denial.
The law should not apply to biological parents, he said. And a state should have the option of making the placement even in face of a denial from another state, something he believes should immediately occur in the Smith case.
The Court of Appeals in Washington State ruled in August that ICPC should not apply to parental placements, arguing the statute is too liberally applied.
The ruling does not apply nationally but does help in the push to reform ICPC, Sankaran said.
Warren County, N.Y.'s decision to use ICPC pushed Smith into a legal rabbit hole from which he has not yet been able to emerge.
After Smith was removed from any cloud of suspicion, Warren County social services officials requested that South Carolina conduct a home study to determine if his home would be a good, safe fit for his daughter's return.
That request did not go directly to the DSS office in Horry County. In a world in which a library of information can be sent around the world and back within a matter of seconds, the request went through a several-months-long process to comply with ICPC.
First the request from Warren County went to the New York state office. From there, it traveled to the South Carolina state DSS office, which received it on Sept. 9, 2008. The state office then sent it to Horry County, which faxed it back to Columbia on Nov. 5. The Columbia office sent it back to the New York state office Jan. 27, 2009.
That four-and-a-half month timeframe was longer than the compact's 60-day requirement. And it doesn't include the time it took for the request to go between Warren County and the New York state office because officials there declined to respond to specific questions about the case.
That slow process might have been necessary when ICPC was enacted decades ago, before computers, faxes and email, said Don M. Hodgdon, a Connecticut attorney who specializes in ICPC cases.
It no longer is, he said, particularly if a parent desperate to have his child returned home is willing to waive privacy rules to shorten the process.
"You can call my human resources department to get my job [status], you can call the local police department, you can call town hall to see if I pay my taxes every year," he said.
And there are no uniform standards about what determines a parent's fitness, Hodgdon said. "One of the oldest fundamental rights in this country is the right to raise our children," he said. "We also have the right to due process of law."
Home study standards
SC. case workers use a standard 16-question form that requires both factual and subjective answers.
The new ICPC law will make the process more standard, said Anita Light, director of the American Public Human Services Association, which oversees ICPC. It will have expanded mediation, remedial and litigation options but will still apply to parents. The new law has been adopted by 12 states, but not South Carolina, which is waiting to make sure the updated law is in its final version. Thirty-five must adopt it before it becomes the nationwide standard.
"Whenever the state has to step in for child protective reasons, it really steps in almost as a parent," Light said. "They will act in the best interest of the child. That will continue under the new ICPC. This is a good law. There aren't any perfect laws."
In Smith's case, his mother helped him buy plane tickets to New York and sometimes buys things for her grandchildren. In the ICPC report, that was presented as evidence that Smith wasn't financially capable of taking care of his daughter.
"DSS is trying to deny Mr. Smith custody because he is poor. Period," said Richard Wexler of the National Coalition for Child Protection Reform. "The fact that his mother is helping should be viewed as a strength, one more person who loves and cares for this child. Does DSS think 'Extreme Makeover' will come by for every family in this situation?"
After waiting to hear something weeks after a New York judge ordered the ICPC home study, Smith visited the DSS office in Conway to find out why the process was taking so long. The case worker, Cathy Gowans, said she had other cases to clear first. Gowans averages between 100 to 120 ICPC studies annually, in addition to four in-state home studies every month and seven or eight other ICPC visits she must also complete.
"She must document those visits, do other follow-ups needed based on what is going on in the home, and quarterly prepare reports on the family to send back to the sending state," said Virginia Williamson, DSS spokeswoman and lead attorney. "If there are changes that require attention from the sending state, she prepares earlier or more frequent reports."
Gowans assists monthly with foster parent orientation during business and after hours and has been required to take five furlough days since 2008, like other DSS workers because of steep budget cuts.
"Her workload can vary because most of it depends on how many requests for home studies come in at any given time," Williamson said. "It is manageable."
Gowans also had to adjust to frequent upheaval in the ranks of her supervisors. The Horry County DSS office has had five people head up the office since Smith's daughter was taken into New York protective custody in July 2008. It currently has an interim director.
A second home study request from New York was received by South Carolina on April 9, 2009, and sent back to New York by June 8, 2009. It didn't reach Smith's attorney until the day of court.
"The judge was reading it for the first time during the hearing, and my lawyer hadn't had a chance to read it yet," Smith said.
A third study was ordered by a New York judge on May 3 of this year. S.C. DSS said it received that request on July 27 and an Horry County case worker went to the Smith home on Aug. 9.
Smith is afraid the results won't make it back to Warren County in time for a third permanency hearing, now scheduled for Oct. 27
He remains baffled by the reasons given in the first two Interstate Compact studies by a case worker who declared him a father unfit to care for his daughter.
He wants to know why DSS deemed him "financially fragile" in key documents that kept his daughter away while another government agency said his household income was so high his children would be kicked off Medicaid.