Unfit: Judge sends Tobi's case to appeal

Unfit: Judge sends Tobi's case to appeal

April 2nd, 2015 by Joy Lukachick Smith in Local Regional News

WIll and Diana McBryar leave Hamilton County Juvenile Court after a hearing on a motion for their daughter Tobi's immediate release from state custody on Wednesday, April 1, 2015 in Chattanooga.

Photo by Maura Friedman /Times Free Press.

It only took a Hamilton County juvenile magistrate 10 minutes to decide that a Chattanooga couple whose newborn was taken from them in the hospital should get their daughter back.

Still, Magistrate Chris Gott said he didn't have the authority to override a court in another state. Ultimately, the family's fate will have to be decided by a higher court.

"If this had been a hearing in [Chattanooga], she would have gone home," Will McBryar said the judge told him in the closed hearing Wednesday.

Now Will and Diana McBryar, who were the focus of a Times Free Press investigation last Sunday and have been fighting for custody of their daughter, Tobi, since September, will have to wait even longer. It has already been more than six months since their newborn was taken from Erlanger East after a Georgia child welfare social worker determined that, while the child had not been abused, future abuse was possible because she believed the parents were mentally ill.

If the couple takes the case to a higher court in Georgia, it could be more than a year before they are reunited with their daughter. If they file an appeal in Tennessee the result would be quicker, but more unpredictable. Keeping the case in Tennessee means there will be a whole new review of the circumstances.

"They shouldn't be able to do this to families," said Will McBryar.

Will and Diana McBryar, who married this past weekend, are among many disabled parents who federal officials and experts say face widespread discrimination in child welfare cases. In 36 states, including Tennessee, Georgia and Alabama, state laws cite parents' disabilities as a reason to terminate parental rights, even when no abuse has taken place.

After Diana McBryar gave birth to Tobi on Sept. 14, hospital records say the mother complained of depression and suicidal thoughts. Later, the hospital found she had postpartum depression but that she wasn't at risk of harming herself or the child. The hospital noted that Tobi was born with amphetamine in her system, but it was from an Adderall prescription that Diana's doctor gave her for her ADHD.

But once the state had custody of Tobi, the McBryars found themselves under a microscope. Will McBryar's criminal record was reviewed. He had been arrested twice for domestic assault, but attended anger management and had his record expunged. The cleanliness of their home was assessed. They were interviewed by a psychologist for several hours who said that Will McBryar had five mental health diagnoses, including an intermittent explosive disorder, and that Diana McBryar had obsessive-compulsive tendencies that could lead to child abuse.

The state didn't consider positive reviews by those who monitored the couple's visits with their daughter, and no attempt was made to judge their parenting through in-home visits, which are recommended by experts.

The court told the McBryars they didn't earn enough and their one-bedroom apartment wasn't big enough. The court also said the couple couldn't rent a basement apartment from McBryar's mother.

They were told to take parenting classes, couples therapy and complete psychological, parenting and domestic violence assessments; to get hair follicle tests to check for drug use, and to maintain stable, clean and safe housing for six consecutive months.

The case dragged on in Murray County, Ga., Juvenile Court. When Will McBryar's attorney filed an appeal, Judge Connie Blaylock ordered the case transferred to Hamilton County where the couple currently lives.

But Wednesday, attorneys for the couple were confused by Blaylock's order. John Wysong, who now represents Will McBryar, said he didn't understand why the case was transferred to Hamilton County when there is a pending appeal in Georgia.

A Tennessee judge can't just reverse the Murray County ruling and release Tobi because the U.S. Constitution requires states to recognize judicial decisions made in other states, Wysong said.

Even though the couple's lawyers say they have a solid case and would likely win on appeal, that decision may not be made until after their daughter is 2 years old.

Outside the closed court hearing, the McBryars were excited and frustrated. Finally, a judge, having reviewed the facts, recognized they had been wronged by the system. Yet they weren't able to bring Tobi home.

"It was heartbreaking that I couldn't just take her with me," Diana McBryar said.

In Georgia, family members are supposed to be given preference when deciding on temporary custody of a child whose parents are being investigated, but so far, family members' attempts to get custody of Tobi have been unsuccessful.

Requests from Will McBryar's sister and Diana McBryar's mother are pending in Hamilton County.

"I know we can win on appeal," Will McBryar said outside the courtroom Wednesday. "Now, if we can just get her with family."

Contact staff writer Joy Lukachick Smith at jsmith@timesfreepress.com or 423-757-6659.