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When the bough breaks: Parents' legal rights often ignored in Beaver County

Tuesday, December 14, 1999

By Barbara White Stack, Post-Gazette Staff Writer

On Dec. 16, 1998, Leah LaJeana Reed was born clean, mainly because her mother, Lisa Reed, spent the last month of her pregnancy in jail, where she couldn't get crack cocaine.

  After four hours of waiting at Allencrest Juvenile Detention Center in Beaver County, Eugene Hill was told by officials that they rescheduled his hearing for another day. The handcuffed parent next to Hill also is awaiting a hearing. (Annie O'Neill, Post-Gazette)

Three days later, Beaver County deputy sheriffs picked up Lisa Reed and returned her to jail, and Beaver County Children and Youth Services picked up Leah and put her in a foster home.

Leah's father, 36-year-old Eugene Hill of Aliquippa, said the child, whose middle name is taken from his, should not have gone to foster care. CYS, he said, should have given the baby to him and his mother to raise.

But CYS didn't do that. And it didn't tell him about a hearing at which Leah was declared a dependent of the state, so that she remained in foster care. In addition, neither CYS nor Juvenile Court in Beaver County told Hill, who was unemployed, how to get a free lawyer.

He wasn't alone. Many Beaver County parents complain that they don't get notices, that they don't understand how to get the free attorneys they are entitled to and that the attorneys don't represent them at some hearings.

Attorneys who represent clients in Beaver County also have complained that the court and CYS are too closely connected, and they point to instances in which CYS workers have had improper, out-of-court communications with judges.

The majority of cases in Beaver County might have turned out exactly the same even if CYS and the courts had not ignored parents' civil rights and state and federal regulations.

Hill is an example of that. Even after Pittsburgh attorney Carol S. Mills McCarthy volunteered to represent him for free, Hill failed to visit Leah or to complete other tasks that would prove he was serious as a father.

When Hill and other parents neglect their responsibilities, they have failed their children. But when CYS and the courts don't fulfill their responsibilities, they may fail every parent and child in the system.

Confusing instructions

When Leah was 6 months old, CYS told Hill it was going to try to terminate his rights to her and place her for adoption. The hearing was to be held Oct. 20.

Eugene Hill sits with his daughter, Leah, in a CYS office in Beaver County. Although he made this visit, he skipped subsequent ones. (Annie O'Neill, Post-Gazette) 

The notice he received conformed with new rules the court implemented after it was sued by the American Civil Liberties Union for improper practices.

The form specified how jailed parents could arrange to attend their hearings and get court-appointed lawyers. But it was not clear to Hill, who was not in jail, how he was supposed to get a lawyer.

The notice said to call the bar association's Beaver County Lawyer Referral Service. But the service doesn't provide free lawyers for poor people. The notice goes on to say, "If you are indigent, the court will appoint a lawyer to represent you." But that assumes people know "indigent" means poor, and that an appointed lawyer means a free one. Hill did not understand that.

The lack of legal representation for children and parents is a serious problem in Beaver County from the moment CYS takes children from their parents to the final step, when the agency tries to sever the legal connection between parents and children.

State regulations say that parents and children are entitled to legal counsel at every hearing. Myra Sacks, assistant counsel for the state Department of Public Welfare, puts it this way: "The court has an obligation to tell parents, before the hearing begins, that they have a right to free counsel if they are needy."

Beaver County officials say they do that at the first hearing. Unfortunately for Hill, he wasn't notified about either the first or second hearing in his daughter's case, and so he never found out the court would give him a free lawyer.

Beaver County calls the first hearing a "detention hearing," as if abused and neglected children were criminals being detained in jail. For the children, that's not too far from the truth, said Linda Ehrenreich, who heads the group of attorneys who represent parents in Allegheny County. Many children sent to foster care feel they've done something wrong and are being punished for it, she said, and that's part of the reason it's so important that they get proper legal representation.

That doesn't happen in Beaver County. There, children are not represented at all at that first hearing, when a judge decides whether it's appropriate for CYS to take them away from their parents and place them in foster care.

Robert R. Rose, the director of Beaver County's juvenile court, said if a child wants an attorney at that hearing, the child may ask for one. That, of course, is unlikely. Few children know they have a right to an attorney or even what an attorney is supposed to do for them.

Children's lawyers

In Allegheny County, children are represented at the first hearing. Allegheny County's Office of Children, Youth and Families pays Legal Aid for Children, of Pittsburgh, to provide lawyers for children, and the organization represent all abused and neglected children in all of their hearings, except occasionally in adoption proceedings.

Scott Hollander, director of the non-profit Legal Aid group, believes children must be represented at that first hearing. "It is a critical hearing," he said, "because it determines whether a child has to be removed from his home, his neighborhood, his school and placed in a totally strange and foreign environment."

When Beaver County children finally get a lawyer, it is an assistant public defender, an attorney who normally represents criminals. Harry Knafelc is now a district justice, but for years he was the public defender designated to represent children.

He said he wasn't concerned that the public defender's office failed to represent children at the initial hearing because, he contended, little children don't even notice if they are removed from their parents for a few days.

Emie Tittnich, a child development specialist with the University of Pittsburgh who has trained foster parents, said it's a shame that a lawyer representing children would feel that way. "Unfortunately, there are too many people like him who think kids are passive recipients of what goes on."

Like children, Beaver County parents also are rarely represented at detention hearings. Juvenile Court Hearing Officer John L. Walker Jr. said he tells them they may be, but he doesn't feel it's essential. After all, they will be getting another hearing in 10 to 30 days, by which time the court can arrange for them to get a lawyer.

Kurt Fuchel, an assistant public defender who used to represent parents in these cases in Beaver County, thinks it's unwise to be unrepresented at any hearing. "It's crazy not to have a lawyer," he said, because parents simply do not know court rules and can't defend their rights the way a lawyer can.

Lack of discussion

After the detention hearing comes a dependency hearing, at which Walker decides whether parents have abused or neglected their children. Court-appointed attorneys represent impoverished parents, if they have understood Walker's instructions for getting one. Some parents have said they did not understand.

The public defender represents children at that hearing. But both Knafelc and Frank Martocci, the current public defender assigned to juvenile court, said they often have entered these hearings with no idea what their clients wanted.

That's because the public defenders don't talk to the children unless CYS transports them to the hearings, and CYS only takes children 7 or older. Even when CYS brings the children to them, the public defenders may spend only a few minutes before the hearing interviewing them.

In Allegheny County, the Children, Youth and Families agency does not always take children to the hearings either, but the lawyers representing children try to call them beforehand, Legal Aid's Hollander said.

Martocci said he sometimes collects information about the children from CYS, but rarely from the parents. So he goes to some hearings without knowing what his child client wants and without knowing anything about the case other than what CYS alleges. He said the public defender's office simply doesn't have the staffing to do more than that.

After the dependency session, the next hearing is usually a permanency planning hearing, at which the court reviews how much progress has been made toward reunifying parents and children.

Poor parents should be represented by appointed lawyers at this hearing, too, but Cathy Campbell, one of the main attorneys representing parents in Beaver County, said in an interview in August that court-appointed lawyers had not been attending such hearings because they weren't paid to do it. If poor parents felt they needed a lawyer then, she said, they could hire one.

After being questioned about that in late October, Beaver County Common Pleas Judge John D. McBride ordered court-appointed lawyers to begin representing parents at these hearings, which means they can now be paid for that work. The judge said he had intended to issue that order in January but somehow overlooked doing so.

A sudden switch

After permanency planning sessions, some Beaver County parents face the most critical hearing of all -- one on whether or not their parental rights should be terminated.

For that hearing, children are given an entirely new attorney.

Beaver County Judge Robert C. Reed, who oversees the court that handles terminations and adoptions, appoints a private attorney for children rather than a public defender.

In the vast majority of termination cases in recent years, Reed has appointed Deborah DeCostro to represent children -- the same person who is involved in a highly controversial case in his court in which DeCostro is trying to adopt a baby who was given to her by a friend of the birth mother without the mother's consent.

After termination, there's little parents can do but appeal. Superior Court has said that lawyers appointed to represent impoverished clients must file appeals, even if they think they're frivolous. But the two lawyers who have represented virtually all parents in Beaver County in recent years, Campbell and Joseph Spratt, have declined requests for appeals.

CYS Director Victor Colonna said he knows there are problems with the legal representation in Beaver County child welfare cases.

He would like his agency to be represented by its own staff of lawyers instead of assistant district attorneys who are not answerable to him.

He wants to hire Neighborhood Legal Services to represent children. And, he said, he would like to contract with the public defender's office to represent parents.

"I think ideally, kids should have one attorney to represent them from the beginning to the end and spend some time on the case and not just look at the record just before the hearing," Colonna said.

Colonna said, however, that he is not sure how he would pay for his plan, and although he has discussed it, he hasn't persuaded everyone involved to do it.

Improper discussions

In the Leah Reed case, it was a stroke of luck that enabled her father, Eugene Hill, to get a top-notch private lawyer. After a reporter mentioned Hill's case to James E. Mahood, a Pittsburgh attorney who is appealing a Beaver County termination without charge, Mahood persuaded his friend, Carol S. Mills McCarthy, to represent Hill for free.

McCarthy got Hill's termination hearing postponed and began trying to set up a plan for Hill to get custody of his daughter. She was not happy with what she encountered. From her perspective, CYS and the court seemed too chummy.

One of her examples is the kind of communication CYS has with judges in Beaver County.

In any court case, attorneys for one side are prohibited from discussing the issues with a judge outside of a hearing because the attorneys for the other side can't contest what is said. The one-sided discussions are known as "ex parte" communications.

McCarthy said she found more than one example of CYS officials improperly communicating with the judge in her case.

A CYS official discussed the Hill case with the judge, she said, and then sent him a letter about it.

CYS doesn't seem to realize it is doing anything wrong, McCarthy said, because it sent her a copy of its letter to the judge. "It's so common, CYS doesn't even know they're supposed to conceal it," she said.

The judge declined to comment on the communications because the case is ongoing.

A father's failure

When McCarthy first took Hill's case, she felt strongly that CYS should give Leah to him because no one had ever shown he was a threat to her. So she asked McBride to order the agency to hand over the child immediately.

After McBride told CYS it had until Sept. 8 to respond, CYS began to negotiate with McCarthy on a plan to give Hill custody. They worked out a deal under which Hill would get weekly visits, attend parenting classes and be evaluated for drug or alcohol problems.

Hill visited with his daughter once, but skipped subsequent visits. Then, his probation officer reported that tests showed he'd been using drugs. McCarthy tried to call him to find out what was going on. She left messages, but he he never called back.

McCarthy saw her hard-fought plan for Hill to get custody of his daughter dissolving. She was disgusted with him.

But that didn't make her any less upset with the Beaver County court system and CYS, which she felt had all along worked against Hill.

After weeks of unsuccessfully trying to reach Hill, McCarthy formally withdrew as his attorney on Nov. 3.

Lisa Reed, who is 29, was released from jail in the fall. She quickly resumed smoking crack. Now she's back in jail and pregnant again. This child is not Hill's.

Even though she and Hill have faltered, there is still another relative who wants Leah.

Hill's mother, Reannabelle Gill, would like to care for her grandchild, even if her son can't, but CYS so far has refused to place Leah with her.

She knows her son didn't do what he was supposed to, but then, the way she sees it, CYS and the court didn't either.

"Everybody," she said, "is doing things wrong."

Tomorrow: Family battles CYS for adoption assistance.

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