Illness that separates

In August 2009, Mindi, a 25-year-old struggling new parent, experienced what doctors later concluded was a psychotic episode. She had been staying in a cousin’s spare basement room in De Soto, Kansas, while trying to get on her feet after an unexpected pregnancy and an abusive relationship. She’d been depressed since her daughter was born and was becoming increasingly distrustful of her relatives. Isolated, broke and scared, one Saturday morning, she cracked. She woke to change her 5-month-old daughter’s diaper. When Mindi looked down, she believed the baby’s genitals had been torn.

FIT TO FEND FOR SON, NOT DAUGHTER? Mindi retains the right to bring up her son, but her daughter has been taken away from her on account of mental illness.

FIT TO FEND FOR SON, NOT DAUGHTER? Mindi retains the right to bring up her son, but her daughter has been taken away from her on account of mental illness.

Mindi’s mind raced for an explanation. The one she came to? That her baby had been raped the night before; that someone—she did not know who—had put sedatives in the air vents.

Mindi called her pediatrician’s office. A receptionist told her to take her daughter to a children’s hospital in nearby in Kansas City, Missouri. Doctors found no evidence that the girl had been harmed or that any of what Mindi claimed had actually happened.

After Mindi started arguing, medical staff sent her for a psychological evaluation and notified local child welfare authorities, according to court records. (As is typical in child welfare cases, the court documents do not include the full names of anybody in the family. Mindi has asked ProPublica to use only her first name, as did other parents in the story.)
That night, authorities took emergency custody of Mindi’s daughter, who is referred to in court documents by her initials, QAH.

A court-appointed doctor later concluded that Mindi had experienced postpartum psychosis. But Mindi rebounded after the episode. She began to attend therapy and to see a psychiatrist, who prescribed an antidepressant. She found a job as a shift manager at Kmart and moved into her own apartment. Each morning, she’d call the foster home where her daughter had been placed and she’d read QAH a book.

In time, her psychiatrist, therapist and even a panel of judges concluded that Mindi should get her daughter back. “I found the help I needed to be healthy,” says Mindi, a wide-eyed woman with a round face and a chatty affect. “I was dealing with some mental battles at the time.”

Dr Stanley Golan, the psychiatrist who treated Mindi, diagnosed her with a mix of post-traumatic stress disorder—likely, a therapist later said, related to abuse—depression and possibly a kind of “mild delusional disorder.” Still, the diagnoses, Golan said in court testimony, “do not interfere with her parenting and she is able to adequately care for QAH.” “You can have these diagnoses and be symptom-free,” he testified.pp_pills_mindi_960x640_140530

Indeed, in September 2011, Mindi, who was in another relationship, gave birth again, to a boy named Jace, whom she’s now raising capably on her own. Citing Mindi’s pending case over QAH., Kansas authorities took Jace at birth and placed him in foster care. But they soon returned him after finding no evidence that Mindi posed any risk to her son. As a family therapist testified, Mindi has provided a “nurturing, loving environment and had met all of [Jace’s] needs.”

Yet four years later, after a protracted series of court fights, Mindi does not have her daughter back. “I couldn’t see how they could keep one while I had the other,” said Mindi, sitting on the carpet in a living room with her son, surrounded by toy trains and a pile of books. “I don’t think I should have to fight for my own child to come home.” (Missouri and county child welfare officials declined to discuss the case.)

The question in Mindi’s case is not about what authorities did when she plunged into a mental health crisis—nearly everyone invol-ved in the case, including Mindi’s own attorneys, agrees it was likely appropriate to remove her baby that day. Instead, the issue is whether a mental health diagnosis itself, in the absence of any harm, should be enough to keep Mindi from ever getting her daughter back.

SENSE OF LOSS: Mindi clings on to memories of her daughter.

SENSE OF LOSS: Mindi clings on to memories of her
daughter.

Under a concept sometimes called “predictive neglect,” Missouri and about 30 other states allow courts to terminate a parent’s connection to a child if authorities conclude a mother or father has a mental illness that renders them incapable of safely raising the child. Officials usually must present evidence that the illness poses a threat. Most cases involve significant mental illness, not run-of-the-mill depression or anxiety. Yet there need be no evidence of actual harm or neglect, just a conclusion that there is a risk of it.

States typically do not track how many parental termination cases are related to mental illness, or how often parents have lost children based on a diagnosis. New York, one of the few states that does tally such cases, has about 200 parental terminations annually based on mental disability, a cate-gory that includes both mental illness and “mental retardation.” If there were a similar rate nationally, that would amount to several thousand cases per year. The cases are typically sealed, and there’s no way to know how many involve court overreach.

But if it’s impossible to know how many parents lose children unnecessarily because of the stigma of mental illness, it’s clear that the process for deciding such cases is deeply flawed.

Courts’ decisions rest on the recommendations of evaluators who often do not observe parents at home or examine their actual record of parenting. Instead, they rely on psychological tests and case notes.

Incomplete evaluations are an “endemic problem,” said Joanne Nicholson, who direc-ted a unit that conducted parenting assessments for Massachusetts child welfare agencies and is one the country’s leading researchers on parents with mental illness.

“Parents are often evaluated without a real analysis of their supports, of the life they actually live,” said Nicholson, currently a psychiatry professor at Dartmouth College. As a result, “the diagnosis starts to speak louder than real life.”
Children can also pay a price when courts overstep. Research shows that forcing children in and out of different homes can leave lasting emotional scars.

The logic of removing kids from parents with serious mental illness is straightforward. Studies have shown that serious mental illness correlates with higher rates of child neglect and abuse. Parents who can’t take care of themselves aren’t going to be in a position to take care of a child. And delu-sional thinking can lead to irrational, dangerous behavior.

“You have to put protection first,” said Mary Kay O’Malley, who worked for years as a foster care caseworker, is now a professor at the University of Missouri Law School and has dealt with many cases like Mindi’s.

When officials fail to intervene to protect children from mentally ill parents, the results can be tragic, irrevocable and front-page news. In one notorious 2008 case, a Long Island, New York, mother drowned her three children after county officials failed to res-pond to repeated warnings from relatives that she was dangerously unstable.

But O’Malley says she’s seen agencies and courts unnecessarily cut off parents from their children. She says that’s what happened to Mindi.

Six months after Mindi brought her daughter to the hospital, in February 2010, a parenting counselor reported that Mindi “is ready to be there for [QAH] emotionally, mentally, and [she] can support QAH.”

“The parent changed in this case,” said O’Malley, who consulted for Mindi’s attorneys for free after learning about the case. “But the court didn’t.”

The laws permitting termination of parental rights were mostly written in an era when serious mental illness was assumed to disqualify patients from participation in normal life, including parenting. Parents like Mindi may have been institutionalized. In many states, the mentally ill or intellectually disabled could be sterilized. The phrasing in the law has often changed—states have removed words like “feebleminded” and “depravity”—but the same concepts echo.

In Mindi’s case, her daughter’s foster parents and the state of Missouri asked the judge in 2011 to terminate Mindi’s parental rights and for QAH to be adopted. The reason her rights should be terminated? Citing state law, lawyers for QAH’s foster family wrote that Mindi has “a mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed.”

The petition rested largely on reports of the event three years earlier, when, after the delusion about her daughter’s rape, Mindi brought her daughter to the hospital.

In 2012, a Missouri trial court granted the petition to terminate Mindi’s parental rights, formally severing her connection to QAH. Mindi was “unable to knowingly provide [QAH] the necessary care, custody, and control” because, the judge wrote, she “has delusions that then become her reality.”

Earlier in the case, Mindi had regained custody of QAH after eight months of separation only to lose it again after refusing to allow visits from QAH’s father, who Mindi says was abusive. Such lack of cooperation is not legally sufficient to permanently separate children from their parents, but the judge who terminated Mindi’s parental rights chalked up her claim of abuse to ongoing delusions—though no evidence was presented on this, one way or the other. QAH was placed back in foster care, this time with a new couple.

The judge also said in his opinion that Mindi had made strange faces while sitting in court, an “affect,” the judge wrote, which “is quite unusual in termination of parental rights proceeding, but is consistent with mental health diagnosis given by [the court-appointed psychiatrist].”

Mindi’s lawyers and other attorneys who represent parents like her say the judge’s reaction is common: Actions and statements that might pass without notice in people without a mental illness are pathologized in people with a diagnosis. “People who have those records at the back of their mind are looking for something to support their theory that she’s not stable,” said Sandra Wirtel, Mindi’s court-appointed attorney.

Mindi and her lawyers appealed the 2012 ruling, and the following year a Missouri appellate court sided with her. The trial court decision, a three-judge panel ruled, “utterly fails to establish that [QAH] would be harmed by a continued relationship with Mother.” The appellate judges added that the judge’s observation of Mindi’s facial expressions “does not constitute reliable and substantial evidence on the critical question of Mother’s present mental condition.”

Mindi began preparing for QAH to return, setting up a bedroom with a pink bedspread. They had not seen each other for nearly a year, and to rebuild their relationship, Mindi and QAH were allowed to begin visits. Her daughter was bigger, more talkative, her dark blond hair now in long curls. At first, QAH was shy, feeling out her relationship with this woman she’d been separated from. But then she asked her mother to play a game Mindi had made up when QAH was younger. “She remembered that,” Mindi said.

Mindi thought her daughter would be home for Christmas. But in late 2013, Mindi’s lawyer called her to tell her the case was not over. QAH’s foster parents, joined by the state, had appealed the case to the Missouri Supreme Court. Visits were halted again. The judges heard arguments in the case two months ago.

When she’s with her son, Mindi can, for a moment, forget that for the last three years her life has been consumed by the fight for her daughter. Mindi enrolled in college again. She spends a lot of time at her Baptist church—Wednesday night Bible study and Sunday services. She now lives in the home of a family friend who is mostly away—Mindi’s father died when she was young and she’s estranged from her mother. Late last year, she started to meet with the foster parents for monthly mediation sessions. QAH had lived with them for more than two years now.

To her attorneys, Mindi’s case still seemed like a sure win. In 2007, the Missouri Sup-reme Court restored the parental rights of a young mother who’d been diagnosed with bipolar disorder.

Judge Richard Teitelman sits on the Supreme Court of Missouri. Speaking broadly about such cases, he told ProPublica, “given the number of people in this world who are bipolar, or have some mental illness and who raise children very effectively, it would not seem to me that it should be a status thing—that anyone can say, if you’re mentally ill you can’t be a parent, you can’t have a child. That does not seem to comport with today’s reality.”

In the early afternoon of March 25, Mindi received a phone message from the lawyer appointed to represent her in her parental rights case. The news was what she feared. “I just lost my daughter,” Mindi wrote in a message to ProPublica.

The Missouri Supreme Court ruled, 6-to-1, that the lower court should be granted broad discretion in making decisions about the facts of a parental termination case. Tho-ugh the judges noted that the state still had an obligation to prove that a parent’s mental condition poses a risk to the child, they wrote that since the trial court had believed Mindi was a danger, the Supreme Court, which did not hear testimony from witnesses, was in no position to disagree.

Judge Teitelman issued a short lone dissent. “The evidence in this case…fails to demonstrate clearly that the Mother is currently unable to adequately care for the child and that she will be unlikely to do so in the future,” he wrote, adding that the court’s decision had been “simply speculative.”

In early May, QAH’s adoption went through. Mindi has no contact with her daughter.

Published courtesy ProPublica-  This is the first part and the second part of the article will be published in the next issue of India Legal

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