States seem unfit for Solomon-like custody decisions

States seem unfit for Solomon-like custody decisions

April 5th, 2015 in Opinion Times

The wisdom of Solomon was demonstrated in the Old Testament with a story of child custody.

Two women claimed to be the mother of the same child after one of the women's baby boy had died. After hearing their stories and contemplating the matter, King Solomon called for a sword and declared that the only fair solution was to divide the living baby into two halves -- one for each woman. The terrible verdict prompted the boy's true mother to cry out, "Oh Lord, give the baby to her, just don't kill him!" The liar, in her bitter jealousy, exclaimed, "It shall be neither mine nor yours -- divide it!"

Today, child custody cases are never so easy.

Tennessee and Georgia are not strangers to this dilemma. Tennessee for years was locked in a high-profile battle with the Tennessean newspaper, which questioned the Tennessee Department of Children's Services on its reporting of child fatalities.

In Georgia, after a number of prominent child deaths, Gov. Nathan Deal last summer fired the head of the Division of Family and Children Services saying the state was putting too much emphasis on keeping families together. Since last March, the number of cases investigated there has nearly doubled and children in state custody now number more than 8,860 -- the most since 2009.

Yet now Tennessee's Hamilton County and Georgia's Murray County are front and center of another case that might have far-reaching effects. This time, disability -- specifically perceived or simply predicted mental illness -- is the focus after a local couple didn't get to take their newborn daughter home from the hospital.

Shortly after Will and Diana McBryar's baby girl was born six months ago but before Diana was discharged from Erlanger East, a caseworker with no medical proof labeled the parents with a slew of psychiatric disorders. The caseworker claimed the mother was catatonic, depressed, had attention deficit disorder and bipolar disorder. The father was labeled autistic with intermittent explosive disorder. Without going to their house, she said their home looked as if they were hoarders.

Wow, you think? They have a lot of problems? Well, think again.

Real diagnoses -- as opposed to claims -- of ADHD, bipolar, depression, postpartum depression and anger issues are widespread. One in four Americans experience a mental illness in any given year, according to the National Alliance on Mental Illness. Medical and therapy advances have dramatically reduced the impact of the most severe symptoms, and a diagnosis shouldn't bar parenting.

Yet parents perceived as having a disability, especially a mental illness, often find themselves tangled in state child welfare cases, according to studies. The American Journal of Psychiatry found that parents with a mental illness are nearly three times more likely to lose custody of their children than parents without a diagnosis.

Some 36 states, including Georgia, Tennessee and Alabama, cite parents' disabilities as a reason to terminate parental rights even when no abuse or neglect has taken place. It is a concept insidiously called "predictive neglect."

For the McBryars, once the inexorable process of state red tape kicked in, mom was ordered to take weekly therapy, dad was ordered into a 30-day inpatient mental facility for treatment, they were strapped with a $432 monthly child support payment and told to get a larger apartment -- all in four months and all while trying to continue supervised visits with their daughter Tobi, work and attend court appointments.

The McBryars fought back. They are telling their story on Facebook and to Times Free Press reporter Joy Lukachick Smith.

In early March, Georgia transferred the baby to a Tennessee foster home. Georgia took initial temporary custody of the baby because mom had been living with her grandmother there when she received Georgia Medicaid, but when the baby was born, mom was living in Tennessee with McBryar in the basement of his family's home. That was where they planned to live with their daughter.

With the baby's move, the custody case also was moved to Tennessee. Last week, a Hamilton County Juvenile Court magistrate found that the couple should get their baby back, but the new judge stopped short of saying the now 6-month-old could go home with her parents. Family members in the hearing, which was closed to the press, said the magistrate explained that he was in a legal quagmire because he didn't have the authority to override a court in another state.

The McBryars now must appeal their case to a higher court in Hamilton County or request that it be moved back to a Georgia appellate court. The couple already has been told a Georgia appellate case could take another 18 months, meaning they might not get their daughter back until sometime near her second birthday.

No one wants to see children hurt. No one wants to see families disrupted for months and years at a time.

Yet somehow, states manage to do just that. Over and over. There is no excuse for this case -- or any other case like it -- to be dragged on and on and on.

Give this case the investigation it needs for a decision in a reasonable amount of time -- one that hopefully will give this family the help it needs and a chance to grow together.

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