Editor's note: This is the fifth 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.
It took three months from the time Johnny Smith learned his 3-year-old daughter had been found wandering alone on a busy New York highway until a social worker arrived at his rural Horry County farm to investigate whether it was safe for the child to return to where she'd lived most of her life.
Because the case involved two states it comes under the Interstate Compact on the Placement of Children law. And because of the way South Carolina and New York interpret that law, Smith could not challenge a social worker's decision, once it was approved by her supervisor.
In non-ICPC cases, DSS has to prove its findings before a Family Court judge.
That's why a family that DSS declared financially unable to care for another child has been forced to deplete most of its meager resources to reclaim its youngest member - with no assistance from the social services agencies in New York or South Carolina, a violation of other federal statutes, according to the National Coalition for Child Protection Reform.
"Effectively, South Carolina has terminated [Smith's] parental rights," said Vivek S. Sankaran, director of the Child Advocacy Law Clinic at the University of Michigan Law School. "Their decision is prohibiting New York from taking any action to place the child with her father, and they themselves are admitting that they have no appeals process.
"Depriving a presumptively fit parent of custodial rights to his child without a hearing is a clear violation of the Constitution."
The mother of the child did not respond to several attempts to get her comments on the case.
The state's case
Had there been an ICPC appeals process in South Carolina, the social worker, Cathy Best Gowans, would have taken her arguments and evidence before a Family Court judge on the second floor of the Horry County Courthouse in Conway. The county's DSS attorney would walk her through testimony to convince the judge that Smith's home was not suitable for his now 5-year-old daughter.
Smith or an attorney representing him would have the chance to cross-examine and present counterarguments. The opposing sides would likely have touched on the following points before a judge ruled:
Gowans would have said she visited the Smith home on Oct. 27, 2008, a 1962 double-wide Fleetwood mobile home he moved into 10 years ago. It had four bedrooms, a bathroom, a kitchen, and living and laundry rooms with central heat and air, major appliances and city water.
It is located in rural Horry County, roughly 10 to 15 minutes from the nearest medical facility, Conway Medical Center.
She would have said a criminal background, Central Registry and sex offender checks performed on Smith turned up only a misdemeanor charge of criminal domestic violence from long ago for which he was found not guilty.
She would have said he completed the 11th grade at Conway High School, dropped out and married his girlfriend because she got pregnant, divorced in 2002 and was granted custody of his two children from that marriage. She would also have reported that he'd worked for Altman Tractor for 11 years, and said he has never had a substance abuse problem.
The judge likely would have learned that Smith takes high blood pressure medication, and the two children from his first marriage take medication for ADHD. He earns $12.50 an hour, his son receives $623 in Social Security benefits because of his ADHD, his kids receive Medicaid, his mother helps him financially, and he made a few dollars too many to qualify for food stamps.
His monthly expenses include $236 for utilities, $186 for phone service, $123 for auto insurance, and he has two maxed out credit cards.
Those are the primary facts Gowans included in the initial ICPC report.
"Mr. Smith reported that he has been working diligently remodeling his home," she would have testified. "However, the inside of the home was observed to be extremely cluttered with debris. The outside was also poorly maintained with the two dogs and the goat. Mr. Smith further admits that his mother assists the family financially, which indicates he is unable to support another child. Due to Mr. Smith's admission [that his former common-law wife's associates] are driving by his home disrupting the family there is a concern if placed in this home if Mr. Smith can protect the child from further victimization."
In a follow-up ICPC report seven months later, Gowans again denied Smith's petition for custody. In that report she wrote: "the inside of the home observed with clothes and trash on the floors, over-filled trash bags, unmade beds, bags of trash and clutter in the bathroom." She also noted school disciplinary problems involving Smith's stepson.
"This family is financially fragile and there are concerns ... in regards to the other children in the home," Gowans concluded. "We are concerned that these children requires [sic] so much attention and special care that placing another child into this home may be detrimental to this already strained family unit. We do not recommend placement of child ... in the home of her father, Johnny Smith."
The father's case
If he'd had the chance, Smith would have countered this way:
He would have said his daughter lived the first three years of her life in the home Gowans called cluttered, that it was in that situation temporarily because of the renovations and the closed recycling center, and that the child's injuries occurred only after she was taken out of that home by her mother.
He would have said his modest home is paid for, as are 123 acres of farmland he shares with his siblings.
He would have told the judge that he is handy with engine repair, something he continues to do for Altman Tractor on a contract basis after being laid off, and that he has four older model vehicles, including a farm tractor, all paid for.
He would have said his mother does not financially support him - that he has held a job since the age of 14 - but helped him buy an airplane ticket when he was told at the last minute that Warren County was about to hold a hearing in an attempt to strip away his parental rights.
His mother would have testified that she does not support her son, because she doesn't have to, that she provides help in the way most grandmothers typically do and helped Smith in a pinch with the plane tickets to New York. She would say Gowans never called to verify her conclusions before sending the denial to New York.
He would have put Terry Smith and Lynn Hucks of the Wraps Behavior Intervention Program at Whittemore Park Middle and Conway High schools on the witness stand, who likely would have said, "I can confirm that Mr. Smith has been very assertive in his efforts to improve his family's overall mental, physical and financial conditions and continues to work alongside all team members who assist him in his efforts to reach his ultimate goal of family stability," as they wrote in a letter on Smith's behalf.
He could have argued successfully against even the mention of the domestic violence charge of long ago for which he was found not guilty. It only shows up on criminal background checks because in South Carolina the defendant must pay to have charges, even unfair ones, expunged, a stipulation of which Smith was unaware.
"We ain't got a lot to spare, but we take 'em [the kids] to the movies or something nice once a week," Smith would have said.
And he would have testified that DSS did not take into account that without a mortgage and car payments, the family's farm produces more than enough food to help them fill in financial gaps, as does his handiness. He used wood from a tree felled by a hurricane in his home's renovations. His farm produces baskets and bushels of peppers and corn and onions and cantaloupes, cucumbers, okra, herbs - and 3 acres of sweet potatoes - some of which they sell, some they eat or stow away.
"They said my house was trash because it was an old mobile home," Smith said. "I may not live in the Hilton, but it's paid for. Damn, I'm trying, man. I can't believe these people say I ain't trying."
But Smith wasn't allowed to do any of that because South Carolina has no ICPC appeals process. Even under a new version of the ICPC, which has been adopted by 12 states (but needs 35 states before ratification), that might not change. South Carolina can make the change on its own.
Because of the current ICPC interpretation and implementation, Smith has taken multiple 17- to 23-hour road trips to New York to see his daughter for an hour or two at a time.
Because of that, the roughly $10,000 he had in savings has been depleted. And $7,300 he had in a 401(k) is gone, 20 percent of which was taken away because of an early withdrawal penalty.
And his tax refund checks have been used to pay a $295-an-hour lawyer, the least-expensive one in New York he could find. He had to send an $800 check to a lawyer instead of using the money for his older daughter's 14th birthday.
"I was ashamed I couldn't get her the new radio and girly jewelry she wanted," Smith said.
Because of how the ICPC is playing out in his case, New York has given notice that it may pursue $23,000 in child support payments it says Smith owes for just six months of his daughter's more than two-year stay in foster care - even though he's begged and pleaded to let her come home since finding out she had been assaulted.
Because of that, he is facing another $1,200 trip to New York for an Oct. 27 hearing that could determine his daughter's future. That doesn't include another $6,000 in lawyers' fees he expects to have to pay. His retainer ran out in May.
If the case drags on much longer, he may be forced to take out a mortgage on his land. He's contemplated selling his tractor.
"I'm almost bankrupt because of this," Smith said. "And I still have to pay more money for something I didn't even do."
But even more frightening is the possibility that because of the way the interstate law is being used in his case, his former common-law-wife might be granted custody even though she spent eight months in a New York prison for the crimes committed against his daughter.