More About Kafka in Colorado: No Recourse for a Mother

Over the last 6 or 7 months, I’ve posted a couple of times about a woman who has not been allowed to see her children for some time, although her parental rights have not been terminated and she has not been convicted of any offense that would normally lead to such termination. “Eve Innocenti’s “ story is told in part at http://childmyths.blogspot.com/2012/12/the-attachment-therapist-wears-two-hats.html and http://childmyths.blogspot.com/2013/01/kafka-again-more-on-capture-of-child.html. These posts describe how “Eve” asked the father of one of her children and his partner (now wife) to care for both her little boys for a few weeks, discovered that the caregivers refused to return the children at the end of that time, and found herself lost in a labyrinth of legal issues and unfounded accusations that prevented her from seeing the children.

For four years--  and counting--  “Eve” has been spending her savings and those of her new husband. She has driven for many hours in order to spend an hour with the children, until that was prevented. And now there are further developments.

“Eve’s” younger boy presents the most difficult case in this situation, because the caregivers who have taken charge of decisions for him are neither biological nor adoptive relatives of his. However, they have been treated as if they were by the attachment therapist they brought into the picture and by the county authorities. Some months ago, the therapist and caregivers brought up the suggestion that the boy had been diagnosed with Fetal Alcohol Syndrome--   an apparent proof that the mother had behaved abusively by drinking while pregnant, and an argument for terminating her parental rights. But “Eve” declared that she drank very little at all and certainly not while she was pregnant, and as it turned out, a second examination yielded the conclusion that the boy did not have FAS.

Both boys were placed for a period of time in therapeutic foster homes, as decided by the attachment therapist in the case. The father’s  wife was expecting a baby and did not want them in her home, especially the younger boy. Possibly as a result of these events, the proposal was floated that the younger boy be placed for adoption by a third family, in spite of his mother’s eagerness to have him back, the lack of evidence that she ever mistreated him, and her psychotherapists’ statements that her mental condition was normal and appropriate. (His biological father has elected to stay out of the picture, and the grandparents on that side are not a resource either.)

“Eve” is now living in a different state and trying to find help for her quest to be reunited with her sons, or at least to have contact with them so she can assure them that she has not abandoned them. She is so fearful of having her behavior held against her that when one of the boys e-mailed to her, she did not reply, feeling that whatever she said could be twisted by one of the adults into a reason to continue preventing any contact. She has contacted the ACLU because of the lack of due process in the legal decisions that have been made, but child custody cases are not their bailiwick. She visited a child custody clinic held by a law school in the state where she now lives, but they were willing to deal only with cases where the children were in that state. Her resources are exhausted and she has been experiencing health problems, but her concern remains focused on the experiences the children are having and the impact of this situation on them.   

Some of Eve’s supporters recently visited an attorney to consult on what paths may remain open for “Eve”. They hoped that a lawsuit for recovery of the money “Eve” has spent at the behest of the county and the attachment therapist (for instance, on ongoing psychotherapy) could be brought on a contingency basis, with the lawyer receiving a percentage of the damages awarded. But the attorney, a person knowledgeable about the therapies in use and about the county, held out little hope. He counseled that “Eve” should accept that her children have been kidnapped legally, and should try to think of this as if they had been lost in a natural disaster. He stated that the county employees involved have iron-clad legal protections against lawsuits complaining of their actions.

In addition to state laws and other regulations protecting human services workers from lawsuits of this type, a decision of the U.S. Supreme Court has also set a precedent--- although it is one that has received much criticism. In the 1989 decision on DeShaney v. Winnebago County, the Supreme Court concluded that the state’s return of an abused child to his abusive father, culminating in the child’s permanent brain damage and paralysis, was not contrary to the obligations of the state and did not permit the award of damages based on interference with due process rights, because the abuser was not an employee of the state but was acting as a private citizen.  In a 1990 essay on this subject in the Duke Law Journal, Jack M. Beermann said: “Joshua DeShaney and other powerless victims of private violence should be the beneficiaries of the fourteenth amendment; victims should be able to hold the state responsible for failing to protect them. … The existence of state agencies designed to attack private misconduct strengthens the argument for intervention. The state makes statutory promises to protect the weak; by failing to treat its tort victims the same as victims of torts inflicted by non-governmental actors, the state violates the guarantees of due process. Because of the victim’s weakness, and because state agencies may have displaced other sources of relief, the victims often have nowhere else to seek aid. Thus, states should be forced to live up to their promises of help against private misconduct.”

Despite the arguments of Beermann and others over many years, DeShaney continues to be the law, and it and state laws stand between “Eve” and redress for herself and her children, whom the state has failed to protect.