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West Neighborhoods
Mom fails in first bid to reclaim newborn

Officials took baby in hospital without following procedures

Sunday, March 02, 2003

By Barbara White Stack, Post-Gazette Staff Writer

Selena Underwood, 20, who delivered her second baby 11 days ago, has been crying herself to sleep, alone in her apartment in Beaver Falls.

Selena Underwood looks into the empty crib where her daughter, Na-Dayja Lashawn Carter, should be sleeping. Beaver County's Office of Children and Youth Services took the infant with little explanation before Underwood left the Medical Center of Beaver County last month. (Robin Rombach, Post-Gazette)

"I sit in the nursery and stare at the crib," she said. "I don't eat. I don't sleep. I haven't even taken off the wrist bands from the hospital."

She's alone because Beaver County's Office of Children and Youth Services took her infant with little explanation before she left the Medical Center of Beaver County. She hasn't seen the baby since.

Underwood and her family left a first pivotal hearing Monday without regaining custody of the little girl but with strong suspicions that their rights, and the infant's, had been trampled.

Their concerns were justified. Beaver County routinely fails to ensure to children and poor parents rights guaranteed by state law.

Those include a child's right to be represented by a lawyer who acts as a guardian at that first hearing and a parent's right to be accompanied to hearings by relatives or friends for support.

In addition, parents have the right to a hearing within 72 hours after a child is taken, and the right to a free lawyer at that hearing if they're too poor to hire one. Beaver County forces poor parents to choose one of these rights -- the lawyer or the 72-hour hearing. They don't get both.

Underwood, for example, got a hearing within 72 hours, but she didn't get a lawyer. The court also didn't provide a guardian for her child or allow her relatives to attend the hearing.

Underwood's experience is not unique. The court and CYS in Beaver County have operated this way for years.

Although the state Department of Public Welfare was alerted to many of these problems four years ago, it has done nothing to enforce the law. In fact, a DPW spokeswoman initially insisted Beaver County did routinely provide children and poor parents with representation at the first court hearings, although no one in Beaver County ever contended that was the case.

Though Selena Underwood grew up in Allegheny County, she has lots of relatives in Beaver County and was living there when she delivered her first child, William, on Feb. 3, 2001.

He was sickly, and Underwood says CYS accused her of neglecting to feed him. After she had him rushed to Children's Hospital in Pittsburgh, though, she said doctors discovered he had a congenital bowel defect. Surgery corrected it, and he immediately began gaining weight. Underwood said she visited him faithfully at the hospital for three months, then took him home to her mother's house in Braddock.

But then, during a visit to her aunt's house in Aliquippa that October, CYS seized him.

The agency has kept him in foster care ever since, and Underwood said it gave her no more than two hours a month in visits. He barely knows her.

Underwood moved to Beaver County to be closer to William and to try to accomplish the tasks CYS demanded for his return.

She completed parenting classes, got an apartment and filled it with a crib, a playpen, stuffed animals and layette items for her new baby, Na-Dayja Lashawn Carter, born Feb. 19. Underwood says both she and the baby tested drug free at the hospital, and CYS has made no accusation that drugs were a problem. Still, CYS took Na-Dayja from Underwood two days later.

Before seizing a child, a caseworker must get permission and show that the youngster is sick, injured or in imminent danger.

In Beaver County, permission comes from an intake officer at the juvenile detention center. They are not lawyers, but they are considered "court officers," empowering them to authorize removal of children.

The law clearly envisions that permission to seize a child will come from a judge, and permitting an intake officer goes beyond the spirit of the statute, said David Herring, dean of the law school at the University of Pittsburgh and a nationally recognized expert in child welfare law.

Underwood contends the caseworker told her only that CYS was taking the baby because it already had William.

That alone would not be a sufficient reason to remove a child, and CYS Director Victor Colonna, and other Beaver County officials suggested there must have been more to it. They're barred by state law from discussing individual cases, however.

Underwood also alleges that the caseworker refused to tell her the time for the initial hearing, but a hospital social worker called and got the information.

It wouldn't be surprising that a hysterical parent would not hear or remember information in the exact way it was presented, Herring said. "That is why we require things in writing and why we require representation," he said.

Beaver County doesn't give parents anything in writing at that point, so most of them don't really hear the accusations against them until the initial hearing, which must be conducted within 72 hours after the agency takes the child.

The short time is to permit families to be reunited as quickly as possible when the government has made an error, said Robert Schwartz, executive director of the Juvenile Law Center in Philadelphia. "The whole point of the 72-hour rule is to minimize the intrusion," he said.

The stakes are high because children are traumatized by removal, and the rate of false allegations in child welfare also is high. Only one of five reports of abuse in Pennsylvania is substantiated.

In addition to the 72-hour hearing, state law requires representation for parents and children.

Allegheny County lawyers who practice in juvenile court say this is crucial because parents and children simply do not know their rights or the law.

"It has to be a level playing field," said Mark D. Edwards, director of the agency that represents impoverished parents in Allegheny County. If parents don't have lawyers, "That is not a level playing field for parents."

Judge John McBride, who oversees juvenile court in Beaver, said the small county could not automatically provide lawyers for parents and children at the initial hearing the way it is routinely done by the larger, richer Allegheny County, with its thousands of children in the child welfare system.

A DPW spokeswoman said the agency was helpless because the court is responsible to appoint counsel.

In Allegheny County, however, the Office of Children, Youth and Families pays for counsel for children and indigent parents to ensure representation.

If Underwood had demanded her right to representation before the hearing began in Beaver County, it would have been postponed by two to three days while the court verified her qualifications for a free attorney. That delay would have denied her the right to seek reunification within 72 hours.

Nervous, upset and on the verge of tears, Underwood recognized she was in no condition to assert her rights or defend herself Monday morning. So she wanted the baby's grandmothers and an aunt to accompany her into the courtroom for support.

Though state law specifies that a parent may bring someone to assist, Underwood was told her relatives could not join her.

Robert Rose, director of juvenile services in Beaver County, said the courtroom is too small to accommodate relatives. And, he said, he felt the law was limited to handicapped parents who needed, for example, someone to assist by pushing a wheelchair.

Witold Walczak, legal director of the Pittsburgh Chapter of the American Civil Liberties Union, said exclusion of relatives was outrageous. "That is an abuse of discretion."

Without her relatives, Underwood took in with her only her certificate proving she'd graduated parenting classes.

The hearing lasted no more than 15 minutes.

Underwood left in tears and collapsed into the arms of an aunt. Though she said CYS presented no evidence of imminent danger to the baby, the hearing officer refused to return Na-Dayja to her.

She would have to wait 10 days until the next hearing. At that one, she and the baby are to be represented by lawyers.

In the meantime, CYF has denied her even one visit, virtually eliminating the possibility that she'll be able to nurse her baby as she'd hoped to even if she does get her back.


Barbara White Stack can be reached at bwhitestack@post-gazette.com or 412-263-1878.

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