My sister's TN Case began as a DCS (neglect) / Family law case, but involves SO many civil liberties and rights issues that cannot be ignored. She has a family lawyer who has not been of any help and we are wondering if a civil rights/liberties lawyer would be more appropriate. Constitutional law and State laws and DCS policies were broken, she was discriminated based on PERCEIVED disability (they did not even prove she was disabled) and they failed to consider ALL the evidence, namely exculpatory evidence and evidence that the witnesses (children) were manipulated (felony) by both Father and Guardian Ad Litem.
On one hand it is very complex because of the multiple issues, but on the other, it seems quite clear cut; she was railroaded in every possible way. Despite being found guilty of NO crime (even abuse) and not deliberate neglect, she has lost temp. custody of her 2 kids and has been denied all visits and phone calls, letters etc for over 2 1/2 years - and she has to pay child support when he owed HER over $12,300 when he got custody.
We really need to try to find a proven, experienced, and motivated attorney willing to FIGHT for her. She is low income and ideally we would love to find someone to work either pro bono or on contingency - on contingency as I feel she is entitled to damages, pain and suffering etc. But money we can work on.
On 9/28/2005 my sister's 2 kids (then 8 and 10) were removed for "environmental neglect" based on an anonymous report to DCS. There was NO search warrant and the kids were not present, so there was no probable cause. The report NEVER claimed the kids were outright abused. The kids were interviewed without Mother's permission or knowledge at school; i.e. no lawyer present, not advised of rights, their statements were used against Mother. DCS went to Mom's house and Mom would not come to door. DCS knocked for 2 hours straight (harassment - again, they had no warrant). When she would not come to the door, DCS called a police officer to assist. She finally opened the door based on duress and threats - i.e. 2 hrs+ harassment, she was PHYSICALLY ILL that day (severe vomitting) and threat they would gain entry via apt. manager's key. Likely they threatened her with child removal, but I cannot prove that. She let them in under those conditions and they NEVER showed (or mentioned) a search warrant and she was NOT advised of her rights (attorney, remain silent, advised of the proceedings against her). Thus, she either consented to a search under those conditions (duress and threats) or they forced a search upon her. This search was not a visual glance only, it consisted of room to room, closed doors (closets) and pantry. It also consisted of their taking photographic evidence (with no search warrant) of her home. They also took down her statements that they used against her. Thus proceedings began based on civil rights concerns and civil liberties violations.
What they were searching for was evidence/proof that she was bipolar, bulimic, alcoholic, and there was no food in the home and the home was a mess. Those were the claims from the start. Though they never proved their case (court says they did), the DCS report and the police report from the same day DIFFER drastically. DCS claims 1) there was NO food in the home and 2) Mother is alcoholic. Police report claims 1) there was Canned food in the home 2) alcohol was NOT a factor. She was never given an alcohol test that day. They found NO alcohol in her home at any time during proceedings. (DCS claims she was alcoholic based simply on the anonymous report, Mother admitted she drinks too much (should be inadmissiable bc not advised of her rights/no warrant), and the kids' unlawful interview may have also mentioned she drinks. Furthermore, throughout proceedings, she was required to submit to AT LEAST 2 unannounced alcohol tests and she passed all. She even passed all unannounced drug tests, though it was never claimed or suspected she did drugs.
DCS never obtained her past medical records to prove she is either bipolar OR bulimic. They required her to submit to a psych eval / custody evaluation, but there is NOTHING that says she is either bulimic or bipolar in that. It merely referenced some vague "does not take responsibility for her actions" type of claims. (The father's eval reference the same type of stuff, and potentially MORE damaging at that!).
In addition to these issues, TN law and DCS procedure was violated at EVERY possible hearing/step: every hearing was held in excess of the maximum time limit allowed by law AND she was never served notice of the preliminary hearing. As a result, she missed the hearing, neither she nor her kids had attorneys present on their behalf (kids should have had a guardian ad litem at EVERY hearing), they took testimony despite their absence (violation) AND entered a default judgment against her (keeping kids with Dad). DCS later testified that had she been present, she would have received her kids THAT DAY. Yet her absence was thru no fault of her own. To date, she has been denied 2-3 important hearings required by DCS procedure to be held within the first year (by 9/27/2006). This consists of 2 review hearings and 1 permanency hearing. This is published procedure on the TN Gov website. (She had 1 hearing a year later, but it was initiated BY HER and was a Petition for Visitation (not Review), so unclear if this counts as 1 of her 2).
My sister DID admit being diagnosed over 20 years ago as bipolar and admitted not taking meds, but DCS did not obtain the med records or determine that this condition put the children at any risk (caused her to be unfit) and/or to what degree it did so. She admitted to a past history of being bulimic, but denied being bulimic at the time. DCS did witness her vomitting on several occasions but 1) She stated she was physically ILL at their initial visit 2) she stated she felt she had an undiagnosed physical condition (extreme acid reflux) 3) The whole situation was very upsetting 4) her vomitting was NOT characteristic of bulimia (it was not after eating large amounts, it was uncontrollable, not controlled and it was in presence of others and NOT hidden. (I.e. Every time a person sneezes does not mean they have a cold. Just because she is a former bulimic and vomits does not mean she ONLY vomits because she is bulimic).
They did find her home to be a mess but there were also extenuating circumstances: she recently had eye surgery and a broken wrist (hard to clean), she is low income and closest family lives 4 hrs away (AL vs TN), and her ex owed her over $12,300 for child support and $8K for a car (can't hire a maid). She cleaned her home and kept it clean in less than 3 days and they didn't even think she could get it cleaned that quick (indicative that the place was NOT as messy as they portrayed it).
Despite all this, my sister was told she would have to do all these things to GET HER KIDS BACK and she did EVERY LAST ONE and still no kids. She cleaned and maintained her home and kept it stocked with food, subjected to unannounced frequent DCS visits, had a drug and alcohol assessment, attended AA and 12 week intensive outpatient alcohol treatment, parenting classes, housekeeping classes, sought treatment for bipolar including medication (medication which costs her over $1200 a month AFTER insurance).
The case soon became NOT about whether she was fit or the kids were neglected, but that the kids did not want to live/visit with her.
The father did not have a JOB when he was given custody, and owed her over $12K in child support, but he was deemed FIT because his house was clean? In fact, he soon was given a job working at the SAME courthouse in a job he had no experience or education in. At first, he didn't even HAVE a lawyer (couldn't afford it), but a few months in, he had a laywer - a TN Juvenile Court JUDGE in a neighboring county. (A peer and superior to the presiding judge). (Despite 2 places in TN Code stating NO Judge can serve as a lawyer in ANY COURT IN TN, 1 reference in the Code says a Part time Judge (as he is) CAN do so. So apparently they view it as legal despite the other references saying NO JUDGE can).
When Mother was finally (in Jan 2006) give the right to visit with kids, Father sought a restraining order. He didn't have a lawyer then, so he tried to secure it using the guardian ad litem. He presented her with a list of 52 ridiculous claims against Mother; most of which were completely NEW and 99% of which had NO supporting evidence at all. The other purported evidence was taken out of context or blown out of proportion. This R.O attempt was done on the SAME day as his and the kids psych evaluations. The psych evals revealed the 10 yr old daughter knew about "insurance policies, restraining orders, and that Father told them to and assisted them in making this list of complaints against Mother." Psych eval revealed the info was adult only and inappropriate, but it is also evidence the kids (as witnesses) were manipulated (a felony) and they were bribed (with gifts of their own cell phones for each girl at 8 and 10 yrs old - they are NOT rich and he owed child support). It also revealed the daughter was TOLD by the Guardian Ad Litem to call her Mother and state she never wanted to see her again - with which she complied.
Father's eval revealed he had an agenda to portray Mom as unfit, he revealed new unheard of "claims" against her (with no evidence) including abuse of the kids AND him (yet he never filed a police report or provided witnesses, photos etc) AND he emphatically denied filing the anonymous DCS report. I have since spoken with a police Capt in the city and have an email stating that the Father filed the report with the police and it was transferred to DCS.
At the next hearing, the ONLY reason she was denied visitation (NOT CUSTODY, but just visitation) is because the kids revealed in that psych eval that they did NOT want visitation. The Judge specifically referenced that psych eval of the girls as that evidence. Yet he ignored the other evidence that they were manipulated by both Father and Guardian Ad Litem, but were told lies and misrepresentations about their Mother and that Father had an agenda against her. The law states that a Judge is to consider ALL evidence relevant to the case whether formally admitted or not - at least that is my understanding.
Furthermore, he overstepped his bounds as he ordered a harsher sentence on Mother - ordered NO visitation or phone calls versus supervised visits and twice weekly phone calls that she had before and this was ON HER (De Novo) Appeal! (Like being sentenced to life and prison and then on YOUR appeal, be given the death sentence - its NOT LEGAL!).
We can find NO ONE (organization) to fight for her; as in advocates for mentally ill. We contacted the ACLU and they refused (they can't take every case) and we contacted the Dept of Justice, Office for Civil Rights - they sent us to the Dept of Health and Human Services Office for Civil Rights. I submitted my complaint with a lot of evidence (what I had at the time) in mid July 2007 and they have yet to send me a ruling. As of Dec they were awaiting a response from DCS to the claims. (I was given 2 weeks to give them my evidence, they were given 6 weeks and then some). I have written a long complaint (and many follow up emails) to the District Attorney's office (as not only is the father guilty of several crimes (bribery/manipulation of witnesses, contempt, flagrant nonsupport, filing a false report) but the Judges and attorneys are guilty for not stepping down and/or bringing to light these crimes/fraud upon the court. The D.A declined to prosecute even ONE - saying that the child support or contempt must be brought up to the court (the same Judge) or I could contact the Nashville child support office or the Board of Professional Responsibility etc. All of which are on my list of actions - but ultimately, even if they agree, the Judge/Attorneys will just get a slap on the wrist (reprimand) - that does NOT overturn her case and correct the miscarriage of justice against her.
Another factor is parental alienation syndrome - the children have been told their Mother has a deadly contagious disease (Hepatitis C) that was in the Father's restraining order Petition and came out in court. This was based on a 10 year old past diagnosis. Mother immediately sought a retest and was found negative. She has been unable to tell the children she does NOT have a deadly or contagious disease. In addition there are 2 new relevant factors we have learned. Mother's 1st cousin has been diagnosed with a disease that is fatal if untreated (Wilson's) - it can cause mood swings similar to bipolar and liver disease (similar to Hepatitis C) and can cause seizures. It is hereditary. Cousin was diagnosed in the past as bipolar and is NOW determined to have Wilsons and NOT bipolar. She also has liver disease. She is on a liver transplant list in AL. My sister's oldest daughter has been diagnosed with unexplained seizures. Testing for this disease is NOT standard procedure and it may explain her seizures - in other words unless she is given the opportunity to get this urgent medical information to her daughters, their lives could be at risk! (Medical neglect through failure to allow contact with Mother who has urgent medical information). (Father has threatened Mother if she contacts him, the kids do not receive their mail (the one right she was granted - he changed his mail to a POB without notifying her and the court) and she cannot contact them directly otherwise or she will be in contempt. (We wrote the kids' doctors letters, but ultimately he has to consent and if he knows it came from her, he won't and we may not know until too late). Another factor is that as Wilson's is characterized by liver disease, if my niece has it (undiagnosed) she is at further risk because the medication she is on has a warning to advise your doctor if you have liver disease!
Another relevant issue is the past month or 2 we found from the mountain of legal paperwork we recently received from her attorney that the younger daughter has ACID REFLUX. An internet search revealed that in almost 50% of cases, it is hereditary. Thus explaining my sister's vomitting. (Or at least making their layman's diagnosis of her questionable).
My sister has not had ANY contact with her kids for 2 1/2 yrs, but she has been found guilty of NO CRIME and her parental rights were NOT revoked. She is paying child support on kids she is legally being denied the right to see. (TN child support is supposed to assume a minimum number of days visitation - I Can't get the DA to look at/ revise the child support order).
She AND her kids have lost a portion of their lives they will never get back. Again, they ultimately denied her VISITS not based on neglect but based on the kids' wishes - kids that had been undeniably manipulated and told lies about their Mother, both by the Court and their Father. (Parental Alienation). These kids were 8 and 10 when the court considered their wishes - TN law gives weight to the wishes of a child 12 yrs old. Now the status quo has been set, but the kids should have never even been removed - let alone kept from her for so long. Furthermore, the DCS Petition that STARTED this whole mess requested that father be given "temporary custody while Mother participates in services." This implies/states that the children WILL be returned upon completion of services - and that NEVER happened. The court had NO basis to deny her the return of custody, let alone visitation. Never was she advised that she could lose her kids forever based on a judge's whims or the kids wishes. In fact, the DCS handbook on Neglect and Abuse cases (on the TN Gov website) states that a parent should work hard to complete the services or they could lose them. They never claimed she didn't complete her services or work hard.
In this same state, Mary Winkler killed her preacher husband with her 3 kids in the home and is granted supervised visits. Eric McLean kills his wife's teen lover and gets joint custody.
We are desperate - I spend all my free time working her case, but I live 4 hours away and have kids of my own and a full time job. She'd be better off fighting the case on her own than with the lawyer she has NOW. She would have been better off if the kids had gone into foster care in the first place. To a large degree I believe he should have found a lot of the evidence (on her behalf and against others) that I have found and sought to obtain other evidence that she has not been allowed to bring out - either because he didn't feel it relevant or in many cases because the court denied her that right.
She can prove that despite her purported illnesses (which have not been proven in the first place) she has had a stable work and residence history (more so than the father) and that other medical physical conditions can explain her vomiting and that she had extenuating circumstances for the condition of her home. She can also prove Father's agenda (he has a history of filing false DCS reports against her - the divorce Judge even gave HER custody and reprimanded him when he did this the first time) and that he moved to CA leaving no forwarding address or phone number for 2 years in an attempt to avoid child support. The sad thing is he does not even want the kids - he just wants to hurt her and avoid paying child support (while earning it for himself). She has gone to great lengths to stay in the city and state where he lives, despite her having no connections there, just so he can maintain a relationship with his kids, but he continually harasses her with DCS investigations (she has passed all except this one and he has done them about yearly for 8 years). She was denied the right to bring up ANY concerns about the father's being unfit because "it was all in the past." Her concerns was that he has a history of filing false reports to get the kids AND that he is addicted to pain killers. She named 2 of his 3 medications and they had been divorced (and had little contact) for the past 8 years. He later admitted in his psych eval to taking these 3 medications (all 3 commonly abused), yet they NEVER required him to submit to testing or be evaluated to determine if he was addicted! (Yet they never found evidence or had suspicion about HER drug use, but she was required to take drug tests!!).
DCS viewed their complaint as truthful and her as a crazy, bulimic alcholic neglectful mother DESPITE all the evidence to the contrary.
We don't even dispute that based on the messy state of her home at the time, they very well probably had cause to remove them TEMPORARILY, but they clearly broke laws and regulations and rights and were NOT legally entitled to keep the children from her indefinately.