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Juvenile Court Journal: Custody termination can be a bitter process

One of an occassional series

Sunday, August 04, 2002

By Barbara White Stack, Post-Gazette Staff Writer

James A. Jackson sat passively as social workers described him as a former forger and heroin addict who had abandoned his daughter.

James Jackson winces as he is checked by his son, Marcus, in a game of chess. Jackson gave Marcus the crystal chess set for his birthday last week. (Annie O'Neill, Post-Gazette)

More Juvenile Court Journal articles:

'Couch kid' teens leave their homes to hang out with friends and relatives (6/9/02)

State law is helping families struggling with teen addiction (3/24/02)

Taking on truancy (4/14/02)

Teens often left behind (2/10/02)

He didn't flinch, outwardly at least, as they told a judge she should terminate his custody of the girl, forever ending his parental rights to raise her, to hug her, even to see her.

At the end of the hearing, when Jackson got his chance to speak, he pleaded for his 3-year-old. "I would like the opportunity to raise my child and be a good dad. I have moved on with my life. My background is shady. But I have not had a dirty urine for years now. A little sunshine has come into my life, and I want to keep it now."

Common Pleas Judge Cheryl Allen did not rule from the bench that day. She prefers to mull difficult cases. Jackson would wait weeks, and during that time, social workers continued to take the girl from her foster parents to him for brief visits. After each, Jackson worried that it was the last time he would ever see his child.

While Jackson waited to find out if he'd permanently lose custody of one child, he grew ever closer to regaining custody of another. His attorney, Catherine Volponi, believes there is a good chance Allen will return Jackson's 11-year-old son Marcus to him in September.

While in termination limbo, Jackson couldn't believe a court could deem him fit to raise his son, but not his daughter.

As Allegheny County has caught up on a decade-long backlog of terminations, difficult cases like Jackson's have become more common. Until 1997, only about 65 terminations were done annually. Since then, there hasn't been a year with fewer than 300. The record was 544.

This has required Allegheny County's Juvenile Court judges to devote huge blocks of time to these hearings, the tensest over which they preside because termination of parental rights is considered the "death penalty" of family court.

The backlog occurred during a time when Allegheny County's Office of Children, Youth and Families frowned on foster families adopting. That philosophy changed in the mid-1990s, after which the agency began seeking the terminations that must be completed before adoptions can be done.

Many of the backlogged cases were easy to resolve: The children had been in care for years; parents had given up hope of getting them back; some couldn't even be found.

Within the past year or so, the half-dozen lawyers who file these pleas for CYF have nearly caught up with the backlog. That means CYF is complying with the the federal Adoption and Safe Families Act, which requires agencies to seek termination of parental rights when a child has been in foster care for 15 months.

But filing that early can often mean bitter termination contests with parents who are still trying to get their children back and will show up to protest.

Jackson's children were in foster care for longer than 15 months while their mother was imprisoned by crack addiction and Jackson was incarcerated at the State Correctional Institution at Camp Hill.

A month before his release to a halfway house in July of 2001, CYF asked Allen to terminate Jackson's parental rights to both children.

A history of wrong turns

Jackson grew up in East Liberty, the namesake of a criminal. Just about 35 years ago, Jackson, who is 56 now, had his own namesake son. He too grew up to be a criminal.

Jackson's career goes back to his teen years and includes car thefts, credit card fraud, forgery, shoplifting and drug violations. He's served time in federal and state prisons, county jail and reform school.

For the most part, the crimes paid for his heroin addiction. "I am not trying to pass myself off as a Goody Two-Shoes," he says, "But I never committed a violent crime or abused a child."

Jackson says a girlfriend raised his first son, and he admits he wasn't involved in the boy's life. But that was not true of his second son, Marcus.

When Marcus was born, Jackson and the boy's mother, Nona Fields, were living in Wilkinsburg. But they soon split up. Jackson moved to Bridgeville and went to culinary school.

Fields moved to Dallas when Marcus was 2. Jackson went there to get Marcus for the next two summers. Then, when Marcus was 4, Fields sent the boy back to Pittsburgh to live with his father.

Fields returned when Marcus was 6 and began living with Jackson and their son. Jackson worked at a funeral home then and had plans to open his own restaurant. He bought a house in South Fayette. Marcus played midget football and little league. They got a dog. They had it all.

But then Fields started using crack cocaine, just as Jackson's work hours were cut. The mortgage was due. The bills were piling up. Fields was pregnant. "I was sinking," Jackson recalls, "so I went back to my old profession, forgery." And he went back to his old drug habit, heroin.

Ultimately, he returned to an old haunt, jail. He missed his daughter's birth. By the time he got out, the bank had foreclosed on the house. The dog was dead. The children were in foster care.

But Jackson had stopped shooting heroin. He visited his son and daughter regularly. He played finger games with his baby and nicknamed her Boo.

The visits ended after only 12 weeks, when Boo was 9 months old, because Jackson violated his probation by forging checks again. That's when he went to Camp Hill.

He saw her only once in the 18 months he was in prison. But he saw Marcus regularly because Marcus' foster mother took him for visits.

A month before Jackson was to return home, CYF sent him notice that it would seek termination of his parental rights.

Jackson was stunned. "That is a terrible thing, to go to jail for 18 months and come back and they take your kids. Is that part of the sentence?"

It could be. If a child has been in foster care for 15 months and CYF believes permanently taking custody from the birth parents would be best, state law requires the agency to ask a judge to do it. The judge decides whether the parents' behavior meets Pennsylvania's standards for termination.

Those include failure of a parent to perform his duties to the child for six months and unrelenting failure of a parent to remedy conditions that resulted in the child being placed in foster care in the first place. In other words, if children enter foster care because their drug-addicted parents forgot to feed them, then the parents quit one drug treatment program after another, CYF probably would have a pretty good case for termination 15 months later.

In addition, the law says judges can mostly ignore what parents do after the agency files the petition for termination. So if a parent suddenly enters a new treatment program, signs up for parenting classes and begins visiting after getting the termination hearing notice, it may all be useless.

Still, CYF will back off if it believes hope remains for a parent. Paula Benucci, supervisor for CYF lawyers who argue for termination, recounts a recent case. A girl had given birth at 14, and, not surprisingly, was acting irresponsibly toward her baby. Three years passed, and CYF prepared for termination. But then the girl began to behave more maturely. Benucci agreed to delay the termination hearing for six months, and in that time the judge returned the baby to the teen.

Because CYF rarely pushes cases such as that and because many parents don't even contest, judges rarely deny a CYF termination request. Among the parents who didn't contest was Marcus' and Boo's mother.

CYF's winning record is not something Jackson wants to hear. He doesn't believe he abandoned his parental duties while prison separated him from his children. "All I did," he says, "was stay gone for too long."

Doing the right things

When Jackson got out of prison in July of 2001, he committed himself to doing everything necessary to get custody of Marcus and Boo. "When I came back, I came with my boxing gloves on, and we have been rumbling ever since," he says of his relationship with CYF.

He went to a halfway house in Pittsburgh and continued drug treatment. He got a job. He rented a house. He visited his children. He kept in contact with his caseworker.

"I did what I was supposed to do," he says, "I have changed. I cannot change the past. But no one says an ex-forger, an ex-addict can't raise his kids."

He didn't choose these activities randomly. They were required in his family service plan. CYF writes a family service plan for each parent who loses a child to foster care. That plan specifies what the parent must accomplish to get the children back. The tasks are intended to cure the conditions that led to the children's removal.

The obligations set out in the service plans are chillingly repetitive: Seek treatment for drug or alcohol addiction; submit to an assessment of mental illness, and treatment if necessary; attend parenting classes; secure housing; get a job; visit the children; keep in contact with caseworker.

Parents who don't meet the goals hear the failures recounted to the judge at the termination hearing. Common Pleas Judge Robert Colville Jr. presided over case after case July 24 in which CYF caseworkers ticked off parents' gross failures to meet even the most basic demands -- such as visiting the children.

In one, an infant had been placed in foster care after doctors discovered broken ribs. The boy's father was convicted of abuse. The mother was evicted from three drug treatment programs, refused to seek mental health treatment and didn't bother to visit the baby even once in the 11 months before the hearing. Colville terminated both parents' rights.

In another case, a 22-year-old mother told Colville she was working on the goals CYF had set and felt she could care for her four daughters when she was released from prison -- in six years. She described the parenting courses and drug treatment she'd gotten in prison, both among her goals. But CYF lawyer Barbara Hanley pointed out to the judge that in the year before the mother went to prison she had failed to accomplish any of the tasks on her family service plan, including regularly visiting her girls. Colville terminated.

As another mother wept in his courtroom, Colville severed her parental rights to a daughter, who had been in foster care three years. Colville acknowledged that the mother clearly loved her child and that she'd grieve over his decision. But she'd been inconsistent in meeting the CYF requirements. She started mental health treatment, but quit. She visited the girl for a while, but then skipped visits for months at a time. She enrolled in parenting courses but attended only one or two sessions.

In Jackson's case, there was no question that he met the family service plan goals. He passed parenting courses in prison. He remained in drug treatment when he got out and held down a job. He visited his children as many times as CYF permitted.

"I was never out of compliance," he says, "but your past haunts you. To them, you never change."

The problem for Jackson was that the goals he met when he returned from prison didn't count for much because they were accomplished after CYF had begun the termination process.

The problem for Marcus and Boo was how long it had taken their father to transform. Had he decided to walk the straight and narrow too late? Could a career criminal and addict sustain sobriety and civility?

Split decision

Four months after Jackson left jail, he found himself in another small room, this time with his two children and a psychologist hired by CYF to evaluate his interactions with them.

The report clinical psychologist Neil D. Rosenblum would later write about the hour in that room with Jackson and the children would frame the family's future.

Rosenblum was critical of Jackson for not actively playing with Boo, for not singing or reading to the 2-year-old. The psychologist also reproved Jackson for seeking sobriety solely to get his children back, not because personal introspection had led him to understand that his previous lifestyle was antisocial. Still, Rosenblum, whose reports nearly always exhibit kindness as well as balance, also said of Jackson, "He does possess positive social skills and can be very fun, appealing and pleasant to be around."

And he described Jackson's relationship with Marcus as dear. As a result, he recommended Marcus be returned to his father, not terminated from him.

His advice concerning Boo was the opposite, however. "I believe it would be more challenging for father to do an adequate job of parenting [her]," he wrote. He expressed doubt that Jackson could provide the stable home life essential to such a young child.

Reports from psychologists such as Rosenblum are influential in juvenile court. Decisions in case after case show that judges rely on these experts' opinions of parents' strengths and weaknesses.

For some, this hour with a stranger can result in a judge ordering CYF to work harder to rehabilitate and reunite. For others, it can speed termination, especially for those whose children are doing well with their foster parents. The foster parents are also evaluated.

That is part of what happened to Jackson. Boo was placed with a pre-adoptive couple about a month after he got back from prison, and she had lived with them for three months before Rosenblum saw them together. By contrast, Jackson had seen Boo only a half-dozen times in brief visits between his release from prison and the session with Rosenblum. So it wasn't surprising Boo appeared more comfortable with the foster couple.

But a child's comfort level with foster parents is not a judge's first consideration.

Under Pennsylvania's termination law, the judge considers whether termination will serve the child's needs and welfare only after finding that a parent's inadequacies meet one or more of the termination standards.

Still, Jackson can see why someone might choose Boo's pre-adoptive parents over him. "The foster parents are middle class. There are perks for her there, financially. They will send her to college. But what has that got to do with family?"

Jackson resents Rosenblum's implication that he wasn't a good father to Boo because he didn't crawl on the floor and play with her. He said he held back out of respect for the tentativeness of their relationship. He knew, though, that she and Marcus were very close because they'd lived in the same foster home for a year before CYF separated them. "I let Marcus play with her because she didn't really know me," Jackson recounts, "I was playing with her, but I was real cautious."

Still, Rosenblum's report got Jackson half of what he wanted. After hearing the psychologist's description of the strong bond between father and son, Allen ordered CYF to work toward reunification of those two. She allowed Boo to remain on the termination track.

Almost a year after CYF told Jackson it wanted to terminate his rights, the case finally went before Allen. She heard testimony in hearings in May and June.

A few weeks later, before she ruled on Boo, Allen conducted a review hearing on Marcus, at which she made it clear she would consider returning the boy to his father in September.

Shortly afterward, she signed the papers terminating Jackson's rights to his daughter.

When Jackson found out last week, the pain choked him up. He felt he was losing part of himself. And he protested the separation of the siblings, noting, "Marcus loses his brotherly rights along with me."

Jackson still has his boxing gloves on though. He said he'd appeal.

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