Ginger Land picks up her granddaughter, Tobi McBryar, to take the baby to her home.

A Hamilton County magistrate has ruled that baby Tobi McBryar, who was a newborn when she was taken from her parents in the hospital, should no longer live in foster care but should go home with her grandmother.

Her parents, Will and Diana McBryar, have fought for eight months for custody of their daughter. Tobi was taken from Erlanger East after a Georgia child welfare worker believed the parents were mentally ill and feared the little girl could be abused in the future.

The McBryars, who were the subject of a Times Free Press investigation, have spent less than 48 hours with their daughter, always under the close supervision of a social worker or a foster mother. But after the judge's ruling last week Tobi was sent to live with Diana's mom, Ginger Land, only 15 minutes away from the McBryars.

"I feel relief," said Will McBryar. "I feel like I can finally start to get to know my daughter."

And if the parents follow a new list of requirements outlined by the Tennessee child welfare system, Tobi could go home with her parents by October.

The McBryars 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. They both have been diagnosed with mental health illnesses.

After Diana McBryar gave birth to Tobi on Sept. 14 hospital records say she complained afterward of depression and suicidal thoughts and she was diagnosed wth postpartum depression, but records show she wasn't considered 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.

Still, Tobi was taken. A Murray County caseworker came to the hospital and with no medical proof labeled the McBryars with a slew of psychiatric disorders.

And 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 classes and is working to get his record expunged. The cleanliness of their home was assessed. They were interviewed for several hours by a psychologist who wrote in her assessment 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 of Georgia 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.

After Will McBryar's attorney filed a petition to appeal the case in Georgia, Murray County Judge Connie Blaylock ordered the case to be transferred to Hamilton County, where the couple now lives.

Since the case was moved to Tennessee, the state Department of Children Services has worked with the couple to get Tobi placed with a family member and out of state custody. The state also approved Will McBryar's request for the couple to get a new psychological exam to get a second opinion on their mental state.

And the state gave the McBryars a plan that could allow them to get their daughter back by late October, shortly after Tobi's 1st birthday.

In the next five months, Will and Diana McBryar will have to find a new place to live, moving out of the one-bedroom duplex they rent from Will's parents; pay child support to Tennessee; and get an alcoholics anonymous sponsor and both attend meetings. And they have to go to recommended therapy, attend parenting classes and domestic violence counseling.

Meanwhile, the state noted that Tobi is a happy, healthy baby and her parents love her.

Even so, Diana McBryar said she feels like she's never been able to bond with her daughter. Always, someone is peering over her shoulder to watch how she changes a diaper or cradles her daughter. And she has to overcome the Georgia court's initial ruling and people's perceptions that she doesn't deserve to be a mother.

She pushes those thoughts aside, now that she's been given another chance.

"We're going to have our hands full," she said outside the courtroom.

Their second baby is due in December.

Contact staff writer Joy Lukachick Smith at or 423-757-6659.