amicus brief - carolyn hill

8/10/2019 Amicus Brief - Carolyn Hill

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I N THE

SUPERIOR COURT OF PENNSYLVANIA

EASTERN DISTRICT

I N THE I NTEREST OF S .J.H.-J., A MINOR

APPEAL OF C .H.

SUPERIOR COURT DOCKET NO . 1950 EDA 2014

I N THE I NTEREST OF A .O.H.-J., A MINOR SUPERIOR COURT DOCKET NO . 1954 EDA 2014

APPEAL OF C .H. (CONSOLIDATED )

IN SUPPORT OF THE APPELLANT C.H. _________

AMICI CURIAE BRIEF OF THE EVERY MOTHER IS A WORKINGMOTHER NETWORK, PROFESSOR DOROTHY E. ROBERTS, CHILD

WELFARE ORGANIZING PROJECT, NATIONAL ADVOCATES FORPREGNANT WOMEN, AND STATEWIDE PARENT ADVOCACY NETWORK

_________

Phoebe Jones, PhDEvery Mother is a Working Mother

Network

c/o Crossroads Womens Center33 Maplewood MallPhiladelphia PA 19144(215) 848-1120

Dorothy E. Roberts, JDProfessor of Law and Sociology,University of Pennsylvania

3501 Sansom Street,Philadelphia, PA 19104(215) 573-2155


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TABLE OF CONTENTS

PageTABLE OF CONTENTS iSTATEMENT OF INTEREST OF AMICUS CURIAE 1STATEMENT OF THE CASE 4SUMMARY OF ARGUMENT 15ARGUMENT 16I The best interest of the children is served by permitting them to live

with their aunt and not by abruptly removing them from their homewithout good cause. 16

-

court erred by failing to consider critical evidence of family bond-ing and unjust removal- court erred by hearing misleading and erroneous testimony includ-

ing faulty parent capacity evaluations and other measures and byfailing to hear critical testimony to counter inaccurate aspersionsabout CHs character

II The best interest of the children is not served by prioritizing financesor educational level and legitimizing social biases of government agen-cies and their contractors. 24- court erred in not exercising oversight over an agency and its affili-

ates

III It is in the best interest of the children both immediate and long-term toreturn them to their aunt and re-integrate them into their extendedfamily 28- court erred in failing to hear critical evidence regarding reunifica-

tionCONCLUSION 32

APPENDIX A INTEREST OF AMICUS CURIAEAPPENDIX BCERTIFICATION OF COMPIANCE AS TO NUMBER OF WORDS


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INTEREST OF AMICI CURIAE

Every Mother is a Working Mother Network and other amici respectfully submit

this brief in support of C.H.s appeal of the decision denying her adoption petition

of A.H. and S.H.. We wish to bring additional information to the attention of the

court that relates to caregiving and bonding, the value to children of a caring ex-

tended family and community, how caregivers and families of color fare in the

child welfare system, how discrimination on the basis of gender, race, income and

educational level in general runs counter to the best interests of children, and how

these issues play out in this case.

Amicus curiae, Every Mother is a Working Mother Network (EMWM) is a grass-

roots non-professional advocacy and support group of caregivers, family advocates

and experts in Philadelphia who are familiar with this case and the issues that

surround it. EMWM campaigns to establish that raising children and other care-

giving is work fundamental to society which has economic value, entitling carers

to support and resources. Since the passage of federal welfare reform laws in

1996, extreme poverty among women-headed households has nearly tripled and

public funds have shifted from direct support to families to support for child wel-


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fare agencies. In response, EMWM coordinates DHS Give Us Back Our Children

in Philadelphia, a self-help support group of mothers, grandmothers, other family

members, former social workers, foster parents and supporters together working

against the unjust removal of children from their families by the Philadelphia

Department of Human Services (DHS), not because of abuse or neglect but be-

cause of poverty and lack of resources, displaying sex, race, disability and class

biases in the system. [Additional information about amicus curiae EMWM is set

forth in Appendix A.]

Amicus curiae, Dorothy E. Roberts, an acclaimed scholar of race, gender and the

law, joined the University of Pennsylvania as its 14 th Penn Integrates Knowledge

Professor with a joint appointment in the Department of Sociology and the Law

School where she also holds the inaugural Raymond Pace and Sadie Tanner Mosell

Alexander chair. Her path-breaking work in law and public policy focuses on

urgent contemporary issues in health, social justice, and bioethics, especially as

they impact the lives of women, children and African-Americans. [Additional

information about amicus curiae Dorothy E. Roberts is set forth in Appendix A.]


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Amicus curiae, Child Welfare Organizing Project (CWOP) is a self-help and

advocacy organization of parents who have had contact with the New York City

child welfare system. Most of our staff and board of directors are parents who have

had children placed in foster care, succeeded in reuniting their own families, and

now use this experience both to help other parents facing similar challenges, and to

organize for system change. [Additional information about amicus curiae CWOP

is set forth in Appendix A.]

Amicus curiae, National Advocates for Pregnant Women (NAPW) works to secure

the human and civil rights, health and welfare of all women, focusing particularly

on pregnant and parenting women, and those who are most vulnerable to state

control and punishment - low income women, women of color, and drug-using

women. Through legal advocacy, organizing, public policy development, and

public education, NAPW advances legal and human rights for all women and

families. NAPW is actively involved in ongoing court challenges to punitive

reproductive health and drug policies, including child welfare policies that unnec-

essarily disrupt families and disproportionately burden people of color. [Additional

information about amicus curiae NAPW is set forth in Appendix A.]


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Amicus curiae, The Statewide Parent Advocacy Network (SPAN) is New Jerseys

one-stop for families of children at greatest risk, whether due to poverty, disability

or special health/mental health needs, discrimination based on race, ethnicity,

national origin, or language, involvement in the child welfare or juvenile justice

systems, or other special circumstances. SPAN is the recipient of an array of more

than two dozen federal and state grants that enable SPAN to serve as a one-stop

shop for families to obtain information, training, technical assistance, advocacy,

and support on issues involving families rights in intersecting systems of educa-

tion, healthcare, child welfare, juvenile justice, and mental health throughout the

State of New Jersey. [Additional information about amicus curiae SPAN is set

forth in Appendix A.]

STATEMENT OF THE CASE

This brief has two goals: first, we explain the context of child welfare decision-

making which has a history of bias, illegality, unaccountability and unprofessional-

ism (Statement of the Case); and second, we show how this context directly relates

to this appeal and helps to explain how the Adoption Court erroneously applied the

law and against the best interest of A.H. and S.H. (Argument).


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A. The History of Bias in Child Welfare Decision Making

The Adoption Court decision to deny custody of A.H. and S.H. to CH, the maternal

aunt who is a low-income Black single mother, and to award the children to a more

distant family member in a higher economic status reflects a bias that has historical

roots in the child welfare system. The first in the nation, the New York Society for

the Prevention of Cruelty to Children was known simply as The Cruelty in

working class families in New York. Orphan Trains in the early 1900s transported

92,000 children (mainly Irish and German, 51.5% of whom had a living parent) to

work on farms in the west. 1 Native American children were forced into white

homes and institutions as part of government policy for over a century until the

1970s. 2 From its inception the child welfare system was more concerned with

punishing families than with strengthening them.

In 1958, the Indian Adoption Project resulted in large numbers of Native American

children being removed from their families and placed in non-Native-American

1 Hasday, J. E. (2002). Parenthood Divided: a Legal History of the Bifurcated Law of Parent Rela-tions. The Georgetown Law Journal , 90(2), 299-386.

2 Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (Basic Civitas Books, 2002), p248-249


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homes, which resulted in high rates of suicide, disruption of tribal culture, and a

destruction of some tribes. In Senate hearings on the Indian Child Welfare Act in

1978, Indians presented evidence that between one-quarter to one-third of all

Indian children had been separated from their families. 3 Referring to this and the

forcing of Native American children into boarding schools in the late 1800s and

early 1900s, The goal was to strip away the Indian identity, take kids away from

their families and away from their communities so they could have a start at a

modern life , Utah Court of Appeals Judge William Thorne, himself Native Amer-

ican, told an American Bar Association gathering of family lawyers. Ive seen the

effect on these kids and I remember the effect when I signed those termination

papers 34 years ago. Now I see some of those children come back and I wish I

could take that back. I wish I could impose a requirement of looking for solutions

before taking children. I guess what Im asking you to do is to redeem my failings,

help parents keep their kids. Fix their problems while they keep their kids. Its

what the children need . 4

3 Ibid.4 Third National Parent Attorneys Conference, Washington DC July 11, 2013.


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B. Race and Income in Todays Child Welfare System

While these were some of the worst expressions of bias against poor and working

class families and families of color, now discredited as shameful chapters in child

welfare history in the United States, the tendency to equate higher income with

the best interest of the child persists in child welfare decision-making. Many

social workers and judges continue to import social biases into their decision

makingeffectively engaging in a form of social engineering of familieson the

mistaken belief that white and/or middle class homes are better for children than

homes they may come from, and confusing poverty with neglect persists. Shock-

ingly, the bond between caregiver and child is often dismissed.

As income gaps have widened and the levels of poverty and extreme poverty

(living on less than $2 a day per person) have grown to epic proportions, so too has

the bias against low-income women of color. Between 1996-2011, the number of

children living in extreme poverty doubled from 1.4 million to 2.8 million, and

extreme poverty rates tripled for female-headed households. 5

5 National Poverty Center, University of Michigan, Policy Brief #28: Extreme Poverty in the UnitedStates, 1996 to 2011


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Since the passage of The Personal Responsibility and Work Opportunity Reconcil-

iation Act in 1996 which ended mothers and their childrens entitlement to cash

assistance and enabled welfare reform nationally, and also the Adoption and Safe

Families Act of 1997, which shifted the focus of child welfare policy towards

child protection and away from family reunification, the number of children

taken from their families increased for nearly a decade until an all-time high of

307,000 in 2005; on any given day, more than 600,000 children are in the foster

care system, about three times as many as in 1982. 6 In 1983, federal child welfare

funding for services for families was $0.40 for every $1 for foster care 7. Now that

figure has dropped to $0.07 per dollar 8, as the child welfare industry has skyrocket-

ed. Black women are the fastest growing segment of the prison population. In

some places 70% of prisoners had been in the foster care system as children 9. 10

million minor children in the US have experienced parental incarceration, and

6 US Department of Health and Human Services, Administration for Children and Families, Admin-istration on Children, Youth, and Families, Childrens Bureau. Trends in Foster Care and Adoption: FFY2002 FFY 2013. http://www.acf.hhs.gov/sites/default/files/cb/trends_fostercare_adoption2013.pdf

7 General Accounting Office, Child Welfare: Complex Needs Strain Capacity to Provide Services,

Letter Report, 9/26/95, GAO/HEHS-95-208, cited in Dorothy Roberts, Shattered Bonds: The Color ofChild Welfare (Basic Civitas Books, 2002), p1428 US Department of Health and Human Services, Administration for Children and Families, Office of

Legislative Affairs and Budget, ACF All Purpose Table (APT) FY 2013 and FY 2014.http://www.acf.hhs.gov/programs/olab/acf-all-purpose-table-apt

9 Family Court Review, April 2010. Cited by Community Coalition, Are Our Children Being Pushedinto Prison? Infographic: http://www.cocomovement.org/2012/06/are-our-children-being-pushed-into-

prison/


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children of mothers in prison are five times more likely to be placed in foster care

than children of imprisoned fathers. 10 80% of women in prison are mothers.

These laws ushered in a punitive system that has devastated Black and low-income

communities, and has built an industry on the traumatic removal of children from

their families. 11 Agencies have a financial incentive to fill beds. They operate

with little oversight. When the state of Illinois, as a result of a law suit, changed the

financing so that agencies were equally rewarded for returning children to their

homes as for keeping them in care, the caseload dropped from more than 50,000 in

1997 to 15,575 as of November 2010, and as the foster care population has de-

clined, child safety has improved. 12

In Philadelphia, the poorest city of its size in the country with the highest level of

extreme poverty and a majority of people of color, the figures are worse. DHS

here removes children at the highest rate for a city of its size in the country. In

Pennsylvania in 2005, 49% of children in foster care were Black, whereas Black

10 Welfare Warriors, Prison Moms Fight for Their Children Behind Bars, Mother Warriors Voice ,September 2014.

11 Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (Basic Civitas Books, 2002), p104-113

12 Cited in National Coalition for Child Protection Reform Issue Paper 12: Financial Incentives, p2


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children made up only 13% of the population for the same period, and Black

children were reunified with their families only 58% of the time, compared with

66% overall and 72% for white children. 13 Poverty, race and child removal are

deeply interconnected.

C. Ethical Conflicts and Bias in Parent Psychological Evaluations

In a qualitative study of Michigans child welfare system, a review discovered that

many social workers negatively characterized or labeled African American fami-

lies and youth and failed to fairly assess or appreciate their unique strengths and

weaknesses . 14 Removal of children is often based on Parent Capacity Evaluations.

According to Prof. Roberts,

"The psychological evaluation, in particular, played an important role in delay-

ing the mothers' reunification with their children. It is common for agencies to

require parents to be evaluated and counseled by state-paid therapists throughout

the time their children are in foster care and for therapists' reports to figure

13 US Department of Health and Human Services, Administration for Children and Families, ChildWelfare Outcomes 2002-2005: Report to Congress. Pennsylvania data.

14 Dorothy E. Roberts, Child Protection as Surveillance of African American Families, Journal ofSocial Welfare and Family Law (forthcoming 2014).


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prominently in the parents' file. Psychological probing by a battery of specialists

is bound to turn up some anxiety, hostility, depression, or improper attitude, es-

pecially when the subject has gone through the traumatic and frustrating experi-

ence of losing her children. The psych evaluation also provides a surreptitious

way of keeping custody of children because of poverty without saying it. In

some assessments, parents' financial problems were interpreted as a symptom of

a deeper psychological deficiency. A parent's willingness to raise children de-

spite economic difficulties supposedly revealed profound irresponsibility or de-

lusion that was damaging to children. How could a mentally balanced person

think she could raise a child without a roof over their heads or a decent source of

income? Child protective authorities could justify detaining children because of

this psychological weakness instead of poverty itself."

A 1990 audit of the child welfare department in Santa Clara County, CA, noted

the economic leverage the department has over evaluators: "A potential exists,"

the auditors found, "that county counsel and the social worker will select evalua-

tors who have a history of supporting the position of the department in depend-

ency hearings". A Santa Clara grand jury that investigated these concerns heard


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testimony about evaluators who were "blacklisted" for failing to side with the

department. The department used admittedly incompetent therapists to evaluate

"less important" cases. Parents with enough resources and determination can

obtain independent evaluations that contradict the agency-solicited report. But

judges are likely to place more weight on the "official" findings. Parents with

enough resources and determination can obtain independent evaluations that

contradict the agency-solicited report. But judges are likely to place more weight

on the "official" findings. 15

According to Dr. Matthew Johnson, professor of clinical psychiatry in Newark,

their negative assessments of parental ability are 'often scientifically questionable

and at times irresponsible.' Psychologists sometimes testify against parents

without ever having examined them, basing their conclusions entirely on case-

worker reports. Others ignore tests that find nothing troubling in the parent's

personality, while focusing on a single evaluation that uncovered a pathological

tendency. 16

15 Dorothy Roberts, Shattered Bonds: The Color of Child Welfare (Basic Civitas Books, 2002), p40-4216 Matthew B. Johnson, "Examining Risks to Children in the Context of Parental Rights Termination

Proceedings", NY Univ Review of Law and Social Change 22 (1996). Cited in Dorothy Roberts, Shat-tered Bonds , p127


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Families are up against a large bureaucracy and face an uphill battle to present the

facts, defend themselves and their children, and get the legal and professional help

they need. To justify their contracts, competing private agencies can require more

and more hoops for parents to jump through to get their children back, and often

treat parents as adversaries even though the US Supreme Court in Santosky v

Kramer found, until the State proves parental unfitness, the child and his parents

share a vital interest in preventing erroneous termination of their natural relation-

ship. 17 Agencies such as the Support Center for Child Advocates, which do not

represent parents and whose Board consists of CEOs of major corporations, have

lawyers and legal help on staff, as well as access to lawyers from large law firms,

while parents and other family, treated as adversaries, either go without, or have

over-worked court appointed lawyers whom they may not even meet until minutes

before their hearing.

In a March 11, 2013 press release issued upon the introduction of Legislation to

Provide Legal Support to Parents, Guardians for Child Welfare Cases, Congress-

woman Gwen Moore wrote,

17 Santosky, 455 U.S .at 760


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Professionals and parents agree that removing a child from his or her family

can be traumatic and foster care, in many cases, does a poor job of preparing

children for adulthood. For this reason, child welfare law is structured, through

federal law incentives, to limit removal of children from their home unless ab-

solutely necessary for the childs safety, and promotes their reunification with

their familyYet very little funding is designated towards ensuring that parents

especially low-income and minorities have quality legal representation

throughout all stages of a child welfare case Child outcomes improve and

courts function more effectively when all parties have quality legal representa-

tion. This legislation gives parents, alongside officials and judges, a voice

when the best interests of their child are at stake. 18

These issues all come into play in this case. It was because of bias, devaluing of

bonding and one-on-one care, financial incentives, abuse of power, and the initial

lack of legal representation and court oversight that C.H. lost custody of the chil-

dren she was caring for who had bonded with her. This case continues because of

the determination of a loving aunt and extended family who, having intimate

18 http://gwenmoore.house.gov/press-releases/gwen-moore-reintroduces-legislation-to-provide-legal-support-to-parents-guardians-for-child-welfare-cases


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knowledge of all parties involved, are fighting for the best interest of these girls by

requesting their return to their aunt and who have gained the support of a distin-

guished pro-bono attorney committed to justice for this family.

SUMMARY OF ARGUMENT

I The best interest of the children is served by permitting them to live with

their aunt and not by abruptly removing them from their home without good

cause.

- court erred by failing to consider critical evidence of family bonding and unjust

removal

- court erred by hearing misleading and erroneous testimony including faulty

parent capacity evaluations and other measures and by failing to hear critical

testimony to counter inaccurate aspersions about C.H.s character

II. The best interest of the children is not served by prioritizing finances or

educational level and legitimizing social biases of government agencies and

their contractors.

- court erred in not exercising oversight over an agency and its affiliates

III It is in the best interest of the children both immediate and long-term to


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return them to their aunt and re-integrate them into their extended family

- court erred in failing to hear critical evidence regarding reunification

ARGUMENT

The best interest of the children is served by permitting them to live with their

aunt and not by abruptly removing them from their home without good cause.

At the request of DHS, C.H. stepped in to care for two of her sisters children in

April and July 2011 when their parents, who eventually lost their parental rights,

were not able to care for them. C.H. provided love, full-time care, and the only

stability the children had known. The girls began to come out of their shells,

interact and bond with each other. C.H. worked closely with A.H. who had been in

a Spanish-speaking foster home to associate words with objects and to ask instead

of scream for what she wanted. All parties agreed the children were doing well

with C.H.. The home was a lively gathering point for the family, including chil-

dren, grandchildren, cousins, aunts and uncles. The children were part of large and

frequent family cookouts, birthday celebrations, neighborhood and church gather-

ings and outings. Tabor Services Adoption Supervisory Reports notes A.H.


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resides in the home with her young sister with whom she is very close and bonded

to.A.H. has formed a loving bond with CHs older teen granddaughter who

resides in the home. A.H. views BH as an older sister caregiver and will often look

to her for support. The interactions are loving and appropriate and the family

will often gather for holidays and dinnersShe appears to be forming an appro-

priate bond with [C.H.] and appears loved and comfortable within the home .

C.H. and the children attended church every Sunday where they were part of a

Christian church community. C.H. was working with Tabor Services on the pa-

perwork for adoption [appendix 2]. All clearances and other items on the adoption

check-off list had been obtained and the paperwork was being updated to reflect

this when in October 2011, Lutheran Family Services took over the contract.

C.H. was feeding the girls dinner on April 3, 2012 when the Lutheran social work-

er, who had called to say she would like to come by to talk, arrived with two car

seats and removed the children from C.H.s home. There was no accusation of

abuse or neglect, no warning, no court order, no process to prepare the children,

and no chance to object to or change this course of action.


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The court order came a week later when the court was told erroneously by DHS

and its new contractor that CH had mental health problems, was being evicted, had

cognitive issues, and did not have a high school diploma or a GED (the court

transcript has been denied to Counsel for C.H. so this is what is remembered by

C.H. and the EMWM advocate who were allowed in the courtroom.) Although

allowed in, C.H. was not allowed to speak or defend herself from the false or

misleading accusations, nor was she provided a lawyer who could have represented

her interests as a pre-adoptive resource. These issues remain relevant as they were

brought up again in the June 11, 2014 adoption hearing and continue to misinform

the court as to the character and situation of C.H..

The issues raised in court in 2012 were:

- mental health problems cited in the Family Profile which consisted of a pre-

scription for Ambien sleeping pills to help her sleep after her mother had died, and

Zoloft for that sadness (which she never took).

- cognitive issues based on a Parent Capacity Evaluation. This evaluation, by Dr

Robins, has been thoroughly discredited by Dr Steven Samuel of Jefferson Medical

Hospital who was finally hired by DHS at the insistence of EMWM that an inde-


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pendent and reputable psychologist conduct the evaluation. In 2012, Dr Samuel

conducted a series of evaluations over a period of 5 days, including with the chil-

dren, while the evaluation conducted by Dr Robins consisted of one 75 minute

session (not two sessions, as is claimed in the paperwork) with no children present.

Dr Samuel further evaluated C.H. on June 3, 2014. Dr Samuel testified in court as

to his findings that C.H. demonstrates the capacities, attributes, skills and abili-

ties that are essential for safe and adequate parenting of S.H. and A.H. and that

she is not diagnosed with a psychological disorder. Further that C.H. has a

good capacity to provide safety, permanency and an environment conducive to

develop and sustain an atmosphere of psychological well-being for S.H. and

A.H..

While her reading skills have been registered at the 5 th grade level, 21% of Ameri-

cans read below the 5 th grade level, the top 40 books read by American high

schoolers are 5 th grade level, 19% of high school graduates can't read at all, and the

average American reads between the 7 th and 9 th grade level. In Philadelphia, 20%

of adults lack even basic literacy skills. Some greats, like Sojourner Truth, were

not able to read at all. 19

19 The U.S. Illiteracy Rate Hasn't Changed In 10 Years, Huffington Post, September 6, 2013.


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Of all the accusations raised in court (including false allegations that C.H. was

being evicted when she continues to live in the home she has lived in for 15 years),

only not having a high school diploma or GED was true. But this was known by

DHS before the children were placed in her care. DHS encouraged C.H. to get a

GED, with July as a suggested completion date, and C.H. took that up. Neverthe-

less, the children were removed in April, before C.H. had a chance to complete the

course. Regardless, nearly half of Philadelphians do not have a GED or high

school diploma, and this should not be a criterion for suitability for close relatives

seeking to adopt the childrens welfare is the criterion.

DHS was also aware of a minor drug conviction for cocaine use in 1999. This too

was brought up again in the adoption court hearing in June 2014, misleading the

court to believe that C.H. was a drug addict, and implying she may still be one,

when she used the substance infrequently for a short period of time after the death

of a daughter over 15 years ago. Her witnesses, if allowed, could have spoken to

that question.

http://www.huffingtonpost.com/2013/09/06/illiteracy-rate_n_3880355.html


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The court has been misinformed again and again, from the first hearing after the

children were removed in 2012 to the adoption hearing in 2014, about C.H.s

character, her status, her housing, her mental health, her right to a lawyer. There is

one criterion that was relevant but not brought up in court how the children were

doing in her care, and all parties agreed they were doing well.

While the issue of standing in court was litigated and C.H. was not allowed stand-

ing despite the evidence that showed she was in fact in the process of adoption and

Superior Court cited the wrong date in denying standing as a pre-adoptive re-

source, what happened in 2012 is still relevant as the court did not rule on whether

DHS violated its own procedures and its own stated ethics and practices by abrupt-

ly removing the children in the way they did which set in motion everything that

has come since. Nor has the court heard all the evidence.

DHS Deputy Commissioner Vanessa Garret Harley admitted at a June 21, 2012

meeting with EMWM that, If I had my druthers, even if the kids had to be re-

moved, I would not have done it in the way it was done. In a November 8, 2012


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letter to EMWM, DHS Commissioner Ambrose wrote, Please be advised that

DHS is in support of moving [A.H. and S.H.] back to the home of [C.H.]. We are

in the process of working with our attorney to effectuate this result. Yet DHS

never acted on this.

The removal has disrupted the bonds the children had, not only with C.H., but with

the family and community they were part of, who have not been allowed to see

them since DHS placed them with the more distant relatives. The girls are no

longer part of the church they had been attending and placed in the home of a

different religion. The wife of the couple who was awarded custody in the lower

court is related by marriage to the childrens first cousin once removed (not second

cousin as stated in court), and not by blood. As figures show that only one third of

children have contact with their fathers after divorce, let alone adopted children of

second cousins once removed, should there ever be a split in the marriage, the

children would be further removed from their blood relatives. 20

20 Robert L. Lerman, Capabilities and Contributions of Unwed Fathers, Fragile Families. Volume 20 Number 2 Fall 2010.http://www.futureofchildren.org/futureofchildren/publications/journals/article/index.xml?journalid=73.&articleid=531&sectionid=3655


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C.H. and other family members had asked this family at the July 16, 2012 Family

Group Decision Making meeting to take the children as a temporary measure so

that the children would not have to be in foster care while the reunification process

with C.H. happened: We want the children back as soon as possible and want the

court hearing moved up . It was never the intention of the family that the children

be placed in their care on a permanent basis, despite how DHS later characterized

it. C.H. did the selfless thing, agreeing for the children to go with another family

member temporarily in order to get the children out of foster care. Yet it was used

against her to keep the children from her and to stop all visits with them, despite

their assurances otherwise, further traumatizing the children and stacking the deck

against C.H.s eventual reunification, so that length of time with the caregivers (not

a consideration by DHS when their contractor took them from her after a year)

could be used to bolster the DHS-picked family. C.H. was asked in court if she

would like to see what happened to her happen to them and if two wrongs make

a right, thus exposing that she (and the children) were in fact wronged. But what

is right is reuniting the children with her and the family they lost when they were

unjustly removed, and doing that caringly, not like they were torn from C.H..


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II. The best interest of the children is not served by prioritizing finances or

educational level and legitimizing social biases of government agencies and

their contractors.

- court erred in not exercising oversight over an agency and its affiliates

As stated earlier, Rep Gwen Moore wrote, child welfare law is structured through

federal law incentives to limit removal of children from their home unless abso-

lutely necessary for the childs safety, and promotes their reunification with their

family .21 Mistakes of the past where racism and attitudes that poverty itself consti-

tutes abuse and neglect which led to Orphan Trains and Native American boarding

schools must not be repeated in this case, nor in other cases. While C.H. is the

aunt, not the mother, she is the closest living relative and her home was the only

stable home the children knew. Where they are placed now they are in daycare all

day rather than receiving the one-on-one attention they enjoyed while with C.H.,

who would have determined when and if it suited the girls to be placed in daycare,

not forced it on them despite that they had had such a traumatic beginning in life.

21 http://gwenmoore.house.gov/press-releases/gwen-moore-reintroduces-legislation-to-provide-legal-support-to-parents-guardians-for-child-welfare-cases


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25

DHS and the Child Advocates have made an error in supporting for permanency a

family that has greater means but who are distant relatives, who have prevented the

children from seeing C.H., and who are a different religion from the one the chil-

dren were being raised in. Thus, they illegitimately decided what was best for the

children based on their own biases and values when the family, who know the

characters of both parties, have repeatedly stated they want the children with C.H..

While once those children were in their lives, many of the family have not seen the

children since the day DHS placed them with the more distant relatives.

The family has met with and written to DHS, circulated two petitions which 50

family members have signed calling for the return of the girls to C.H., come to

court on three separate occasions (one court reporter said it was the largest show-

ing of support he had ever seen), taken time off of work and other obligations to let

their wishes be known. The former DHS social worker assigned to the H. family,

Juditte Barrett, felt so strongly she wrote a letter, It is unfortunate if ones earning

potential and educational achievement are being used as reasons to rip children

from the arms of love, capable caretakers. My heart goes out to A.H. and S.H.


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26

who I am sure have been grieving the loss of their very loving caretaker . Yet

those wishes are ignored by DHS and not presented to the court. The family, C.H.

and the girls have not been allowed to have their day in court. While there can

certainly be cases which require DHS to make a judgment call, when families are

absent, that is not the case here. The family has been engaged and clear. They

have relied on a court that has so far taken the word of social workers and lawyers

over theirs, and which has in fact not even heard or considered their views.

The court made an error in not allowing the family members, pastor and advocates

to testify in court on behalf of C.H., although twelve of them were present and all

on the witness list. Once opposing counsel attempted to characterize or insinuate

that C.H. is an anxiety-ridden, depressed, drug user with low intelligence who hits

children and lies about it, the court had an obligation to hear from those who know

C.H. best her family, friends, colleagues, neighbors and pastor, and especially

from those who saw her interactions with the two girls in question. Some know

both C.H. and the other family and could have testified as to their respective char-

acters and family stability. It is not always the case that what looks good on paper

is in fact good or better or best for the children. As the court is weighing who is


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27

the better party to adopt, it should have all the facts from the experts who know

them best: the family.

The deck was further stacked when three lawyers, five witnesses and a social

worker for the Support Center for the Child Advocates (whose presence at both the

hearing and the pre-hearing is questionable, since they are supposed to be for

lawyers and witnesses only) were allowed for one side; while one lawyer and only

two witnesses were allowed for the other, when 12 witnesses waited in the waiting

room all day to testify. That does not serve justice and is not the whole truth and

nothing but the truth.

DHS and the Child Advocates have mischaracterized, slandered and demonized

C.H. who stepped up to the plate and did a wonderful job raising the children. This

is the central fact that is lacking in most of the arguments against C.H.. They have

also demeaned the grassroots group supporting her in getting what are her rights

and objecting to their testimony which the court erred by sustaining. They further

threatened C.H. with never seeing her nieces again unless she dropped her adop-

tion petition and severed her ties with EMWM.


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28

This case is emblematic of the problems with the child welfare system which is

focusing, not on examining and reforming their practices and biases which has led

to Philadelphia having the distinction of removing children, overwhelmingly

children of color, at the highest rate in the country for a city of its size, but instead

on attacking a low-income Black single mother who was doing a great job raising

her nieces, and the all-volunteer support group she works with. We are asking the

court to right this wrong and return these children to their closest living relative

who loves them and whom they love.

III It is in the best interest of the children both immediate and long-term to

return them to their aunt and re-integrate them into their extended family

- court erred in failing to hear critical evidence regarding reunification

Opposing counsel has argued that the initial removal, while perhaps regrettable, is

water under the bridge and returning the children to their aunt after all this time

would be traumatic and damaging as the children have now bonded with the new

caregivers. But Dr Samuel testified that there is no set amount of time children can


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29

be away after which they are scarred. It depends on the child. The body of litera-

ture on the issue of reunification shows that the predictions that children would

be forever scarred if they were reunited with their parents are not supported by

current scientific knowledge. 22

Critics have soundly denounced the perspective that discounts the connections

children maintain with their parents (or in this case aunt, the only consistent care-

giver they knew), even while in substitute care, as well as children's ability to

develop relationships with more than one "psychological parent." 23Empirical

studies show, for example, that children in foster care suffer psychological harm

when they are cut off from their family and they benefit from contact with their

parents during placement. Policy makers and judges nevertheless hold fast to the

preeminence accorded to permanency 24 Reuniting A.H. and S.H. with their aunt

who was their primary caregiver and reintegrating them with their family, church

and community from whom they have been separated is in their best interest and

can be accomplished in a positive way. Unlike the current caregivers who have

22 Ronald G. Silikovitz and Philip H. Witt, "The Role of the Psychologist in Guardianship Proceed-ings," New Jersey Psychologist 42 (1992)

23 Matthew B. Johnson, "Examining Risks to Children in the Context of Parental Rights TerminationProceedings", NY Univ Review of Law and Social Change 22 (1996): 397

24 Peggy C. Davis, "'There is a Book Out...': An Analysis of Judicial Absorption of Legislative Facts," Harvard Law Review 100 (1987): 1539


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moved to stopped all visitations, C.H. would welcome their involvement in the

girls lives, promote visits and invite them to social occasions. While the current

caregivers would have to discuss the possibility of visits, C.H. has no problem

with the other party visiting or the children visiting them. She would make sure

that the transition is smooth and that the girls dont suffer any further trauma. The

court must bear in mind the long-term impact of being torn from their roots with

their loving aunt, and their loving and close-knit family and community. Studies

have shown that children seek out their families and roots as soon as they are able

to do so and restore the balance.

A.H. and S.H. should never have been removed from the home of C.H., particular-

ly in a way that was cruel to the children, C.H. and the family, that was possibly

illegal but definitely against stated practices and any standard of decency, and that

was based on opinion, bias, misrepresentations and shoddy and unprofessional

evaluations. An initial mistake was made in taking the children, and everything

that has happened since has been done to justify it or cover it up, compounding

rather than correcting the mistake. Placing the children with a better-off but more

distant and disconnected family member does not right the wrong of their removal

nor restore to the children the connections they had when they were severed and is


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31

not in their best short term or long term interest, despite the time lapse. It further

sets a terrible precedent: that wealth, social standing and education level are deter-

minants of best interest of the child, not how the children are doing, and that

DHS and its affiliates can act with impunity and without regard for the wishes of

the family, former social workers, church and community who all spoke out for

C.H.. Only returning the children to C.H. restores the bonds and reunites a family

that includes all parties, while awarding custody to the other party solidifies a

family divide which DHS created, causes the children to lose ties with their closest

blood relatives, and goes against the laws of family reunification and protection

from unjust removal. Only the court has the disinterested oversight to protect the

rights of this family, provide them and the public with recourse, rein in a large

bureaucracy that has been acting with bias and without accountability and allow

justice to be done.


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CONCLUSION

Accordingly, we ask this court to reverse the decision of the lower court and reu-

nite C.H. with her nieces by granting her petition to adopt them.

Respectfully submitted:

Phoebe JonesEvery Mother is a Working Mother Networkc/o Crossroads Womens Center33 Maplewood MallPhiladelphia PA 19144(215) 848-1120


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I N THE

SUPERIOR COURT OF PENNSYLVANIAEASTERN DISTRICT


APPEAL OF C .H.




PROOF OF SERVICE

I hereby certify I am this date serving a copy of an Amicus Brief in the captionedconsolidated matters upon the following persons in the manner indicated below,which service complies with the Pennsylvania Rues of Appellate Procedure.

Service by First-Class Mail addressed as follows:

1. Honorable Walter J. Olszewski1801 Vine StPhiladelphia PA 19103

2. Jonathon Houlon, EsqDivisional Deputy City SolicitorPhiladelphia Law Department1 Parkway, 1515 Arch St 16 th florPhiladelphia PA 19103

3. Barry M. Kassel, EsqThe Support Center for Child Advocates1900 Cherry StPhiladelphia PA 19103


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4. James Martin, Esq.1800 John F Kennedy Blvd Suite 300Philadelphia PA 19103

5. Mark Tanner, EsqFeldman Shepard, LLP1845 Walnut St Flr 21Philadelphia PA 19103

6. Jennifer HoughtonClerk of Family Court1801 Vine St Rm 330CPhiladelphia PA 19103

7. Carolyn Hill3546 No Marshall StPhiladelphia PA 19140

8. Samuel C Stretton, Esq.

Attorney for Appellant, C.H.301 S High St P.O. Box 3231West Chester PA 19381



______________Date


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Appendix A

Interest of Amicus Curiae

Every Mother is a Working Mother Network (EMWM) is a non-professional

advocacy and support group of caregivers, family advocates and experts in Phila-

delphia who are familiar with this case and the issues that surround it. EMWM,

formed in 1997, campaigns to establish that raising children and other caregiving is

work fundamental to society which has economic value, entitling carers to support

and resources. Since the passage of federal welfare reform laws in 1996, extreme

poverty among women-headed households has nearly tripled. Public funds have

shifted from direct support to families to support for child welfare agencies.

In response, EMWM coordinates DHS Give Us Back Our Children in Philadelphia

formed in 2007 and DCFS Give Us Back Our children in Los Angeles formed in

2009.These are self-help support groups of mothers, grandmothers, other family

members, former social workers, foster parents and supporters together working

against the unjust removal of children from their families by the Philadelphia

Department of Human Services (DHS), not because of abuse or neglect but be-

cause of poverty and lack of resources, displaying sex, race, disability and class


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A2

biases in the system. We produced an award-winning documentary on the child

welfare system in Philadelphia, DHS Give Us Back Our Children , in 2010 which

gave voice to the experiences of families facing the child welfare system. EMWM

has been working simultaneously as advocates for families and catalysts for policy

changes; changes that begin to value and support the work of mothers and caregiv-

ers that is so critical to children and society and to address extreme and growing

poverty - which disproportionately impacts communities of color, particularly their

children.

EMWM has been advocating for C.H. since she was referred to us on April 4, 2012

by a reporter at the Philadelphia Daily News whom she contacted when her nieces

were summarily removed. The reporter knew of our particular expertise in assist-

ing mothers and other caregivers in navigating the child welfare system, claiming

their rights and getting the help, resources and respect to which they are entitled,

and which are critical to the well-being of their children. We provided that service

to C.H. who is now volunteering with EMWM to help others.

Founders of EMWM played a leading role in the decision made at the 1995 UN


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A3

Decade for Women conference in Beijing China that governments should measure

and value unremunerated work in the home, on the land and in the community and

include those figures in economic statistics and the gross domestic product. Over

1200 non-governmental organizations representing millions of women worldwide

supported the decision. The Bureau of Labor Statistics now conducts time use

surveys as a step toward implementation. Founders also were instrumental in the

introduction of legislation in the US Congress in 1994 called The Unremunerated

Work Act that paved the way for implementation of the UN decision in the US.

Studies have shown that mothers and other caregivers in the US, far from being

scroungers, devote more than 110 million hours a year to unpaid interactive child

care alone 25 worth an estimated $237 billion a year, according to the Johns Hopkins

Bloomberg School of Public Health. Many, such as C.H., are doing the heroic job

of raising children and taking care of elderly dependents in situations of poverty

and even extreme poverty. Neither they nor those they care for should be punished

for this. Nor is the remedy to remove children from their families in order to re-

move them from poverty. Our view is that it is the poverty that needs to be re-

moved, not the children.

25 The Shriver Report, A Womans Nation Pushes Back From The Brink, January 12, 2014.http://shriverreport.org/special-report/a-womans-nation-pushes-back-from-the-brink


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A4

Amicus curiae, Dorothy Roberts, an acclaimed scholar of race, gender and the law,

joined the University of Pennsylvania as its 14 th Penn Integrates Knowledge Pro-

fessor with a joint appointment in the Department of Sociology and the Law

School where she also holds the inaugural Raymond Pace and Sadie Tanner Mosell

Alexander chair. Her path-breaking work in law and public policy focuses on

urgent contemporary issues in health, social justice, and bioethics, especially as

they impact the lives of women, children and African-Americans. Her major books

include Fatal Invention: How Science, Politics, and Big Business Re-create Race

in the Twenty-first Century (New Press, 2011); Shattered Bonds: The Color of

Child Welfare (Basic Books, 2002), and Killing the Black Body: Race, Reproduc-

tion, and the Meaning of Liberty (Pantheon, 1997). She is the author of more than

80 scholarly articles and book chapters, as well as a co-editor of six books on such

topics as constitutional law and women and the law.

Amicus curiae, Child Welfare Organizing Project (CWOP) is a self-help and

advocacy organization of parents who have had contact with the New York City

child welfare system. Most of our staff and board of directors are parents who have


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A5

had children placed in foster care, succeeded in reuniting their own families, and

now use this experience both to help other parents facing similar challenges, and to

organize for system change.

Amicus curiae, The Statewide Parent Advocacy Network (SPAN) is New Jerseys

one-stop for families of children at greatest risk, whether due to poverty, disability

or special health/mental health needs, discrimination based on race, ethnicity,

national origin, or language, involvement in the child welfare or juvenile justice

systems, or other special circumstances. SPAN is the recipient of an array of more

than two dozen federal and state grants that enable SPAN to serve as a one-stop

shop for families to obtain information, training, technical assistance, advocacy,

and support on issues involving families rights in intersecting systems of educa-

tion, healthcare, child welfare, juvenile justice, and mental health throughout the

State of New Jersey. SPAN houses the NE Parent Center Assistance and Collabo-

ration Team, providing technical assistance to the federally funded parent centers

in the NE US including Pennsylvania. SPAN also houses the National Center for

Parent Information and Resources, providing resources to other federally-funded

parent training and information centers that assist families of children with disabili-

ties or at risk of inappropriate identification across the country. In our role as a


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A6

Parent Training and Information Center and a Family to Family Health Information

Center, SPAN provides assistance to thousands of families each year in every

county of the State, including families who come into contact with the New Jersey

child welfare/child protection system. SPAN is represented on the New Jersey

Task Force on Child Abuse and Neglect, the statutorily-mandated task force

charged with overseeing prevention of child abuse and protection of children

exposed to abuse, and its Co-Director, Diana Autin, co-chairs the Prevention

Committee of the Task Force. SPAN is particularly interested in the outcome of

this litigation because of our national, regional, and state roles, as this case has

national implications for families at risk of losing their children due to poverty,

discrimination, and the misinterpretation and misapplication of statutes and policy.

Amicus curiae, National Advocates for Pregnant Women (NAPW) works to

secure the human and civil rights, health and welfare of all women, focusing par-

ticularly on pregnant and parenting women, and those who are most vulnerable to

state control and punishment - low income women, women of color, and drug-

using women. Through legal advocacy, organizing, public policy development, and

public education, NAPW advances legal and human rights for all women and


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A7

families. NAPW is actively involved in ongoing court challenges to punitive

reproductive health and drug policies, including child welfare policies that unnec-

essarily disrupt families and disproportionately burden people of color.


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I N THE

SUPERIOR COURT OF PENNSYLVANIAEASTERN DISTRICT


APPEAL OF C .H.




CERTIFICATION OF COMPLIANCE AS TO NUMBER OF WORDS

This Amici Curiae Brief complies with the type volume limitation of the

Pa.R.A.P., Rule 2135(a)(3) because this brief contains 8,006 words.



amicus brief - carolyn hill

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