Despite DNA, Dad’s Paternity Denied

By Michael Lindenberger Tuesday, Apr. 29, 2008
For nearly two years, James Rhoades, a university librarian in Tallahassee, has been fighting to establish in law what science and fact already have shown beyond any doubt: He is the biological father of the boy dubbed J.A.R. He’s got DNA tests to prove it, and videos and loads of pictures of him with the boy. In the photos too are the boy’s mother, J.N.R., whom Rhoades met while taking an online graduate course. She was — and still is — married to another man, who was stationed at a Pensacola-area Air Force base during their affair in 2005. And that’s the problem.

Last week, in a decision that underscores the tense relationship between science and law, a divided Kentucky Supreme Court told Rhoades that he could not press his paternity claim, no matter what evidence of fatherhood he might have, because J.N.R. was, and remains, a married woman. When it comes to defining fatherhood in the Bluegrass State, where Ricketts and her husband now live, the marital “I do” mean a lot more than DNA.

The 4-3 decision splintered the court, which issued five separate opinions. The majority was itself divided evenly among two camps, one that said Rhoades might have prevailed had he been able to show the J.N.R.’s “marital relationship had ceased at least 10 months” prior to the boy’s birth, and another that said no “stranger to the marriage” can ever attack the legitimacy of a child’s birth. “As long as marriage is on the books, it must mean something,” wrote Justice Bill Cunningham in one of two concurring opinions. “… We are in need of a bold declaration that the marriage circle, even one with an errant partner, will be invaded at one’s own legal risk.” He added: “While the legal status of marriage in this early 21st century appears to be on life support, it is not dead.”

The decision has left Rhoades devastated. “What I wanted was not just to see my son but to participate in his life,” Rhoades told TIME. “He is my son and I love him.” Kentucky’s ruling is firmly grounded in the history of the law, however. In fact, the so-called marital presumption has barred attacks on the legitimacy of children for centuries. Courts have forever held that allegations of fatherhood by third parties can only disrupt the family, confuse or embarrass the child, and unsettle the social order.

But unlike the past, such allegations these days are often backed by science, introducing certainty where none before existed. As of a result, the prohibition on third-party challenges to paternity has begun to weaken. By 2000, at least 33 states had adopted rules that allowed challenges by fathers with genetic proof of their paternity, usually restricting such efforts to the first two years of a child’s life. The advent of DNA testing has tread a similarly disruptive course in other areas of law, including criminal cases where exonerations once thought impossible are becoming routine. A few states have even begun allowing ex-husbands to present DNA evidence that they were duped by cheating spouses to avoid child support obligations.

For Rhoades, the changes are coming too slow, however. Unable to present proof of his paternity, he won’t be able to seek custody or visitation rights. As a result, he’ll be a stranger to his son until such a time as the boy’s legal parents decide to tell him, if ever. “My son is going to find out the truth eventually,” he said. “Is he going to find out when he is 13, 14 that everybody in his life has lied to him?”

Justice Lisabeth Hughes Abramson raised just that point in a fiercely worded dissent attacking the majority’s notion that the boy will be better off not knowing the truth about his parentage. “Our world is full of inconvenient truths. We accomplish nothing for families, the broader community and our justice system when we deny those truths.” she wrote.

Rhoades said he plans to appeal to the U.S. Supreme Court on constitutional grounds. But he faces long odds there, given that the high court has already ruled once, in 1989, on the same issue, upholding California’s explicit bar against paternity challenges like his. That decision too was divided and contentious. The biological father in that case did not get to see his daughter till she had turned 21. “Well, obviously I am not going to give up and say, ‘Oh well I lost,'” Rhoades says. “I believe I have a fundamental right to be in my son’s life.” The trouble is: nature’s law isn’t the law of the land.

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Therapy Can Be an Important Part of the Divorce Process

One of the things that I have noticed over the course of my career as a family law attorney is that people going through the divorce process have an unwillingness to go to therapy even though they could benefit greatly from the process. “I don’t need help, I’m dealing with it” or “I need a divorce, not therapy” are refrains I have become used to hearing.

What seems counter intuitive to me, though, is that seeking counseling after the death of a loved one has no stigma attached, while many individuals going through divorce believe getting therapy after the death of a marriage does. The goals of the two are the same: To help people get on with their lives, and when children are involved, helping their children deal with these significant changes in their lives as well.

One shouldn’t have to feel embarrassed about getting help.

If you are having a difficult time coping with a divorce or with the changes in your life that are the result of a divorce, guess what. That’s normal. A divorce is a traumatic event in a person’s life and it takes time and often outside help to heal. The good news is that you’re not alone. It is natural in your position to need someone who will listen to you and help you adjust to your new life and the death of your old life. Seeking help in your time of emotional need from a professional is not only nothing to be ashamed about, but in a lot of cases, the most prudent step you can take. Even if your soon to be ex-spouse tries to make it an issue in a custody dispute, chances are that the court won’t see it as an issue, because the Judge gets that you are seeking help to better adjust, and that is something to be commended not condemned.

If children are involved, they need someone to talk to.

Children are not always “resilient” as is commonly claimed. They may try to act brave, but imagine how difficult and confusing it is for a child to be caught in a tug of war between two parents, going from one house to another, or not getting to wake up in the same bed every morning. Many parents think their children don’t need therapy because the child can talk to them, but seriously, if your parents were going through a divorce, would you want to talk to mom about dad and vice versa? Would you feel comfortable telling your parent you aren’t happy with him or her? Children of divorce have their own set of issues and you should be open to your child seeing a mental health professional.

Your actions affect your children.

Consider the harmful effect on the children when parents don’t communicate well. For example, something I’ve seen over and over again is the “I don’t even mention him/her” syndrome.

“My child is secretive about what happens when she is with my ex and whenever we discuss her feelings she tells me one thing and tells my ex something else. She can’t know how much I hate him because I never bad mouth him. In fact, I don’t mention him at all.”  

If you think not mentioning your ex is helping your child, you are wrong. This type of behavior teaches children that they can’t mention their other parent when they are with you because it is a taboo subject. They get that you don’t like your ex and your child is worried that if she takes your ex’s side not only will your feelings be hurt but that you will get angry as well. Not mentioning the other parent is the same as bad mouthing him or her.

Another trap that is easy to fall into is “I don’t interfere” disease.

“I’m not going to interfere. I’m not going to tell my children they have to abide by our parenting plan and go with their other parent because I’m not going to take sides.”

If you think this is not taking sides, you are mistaken. By not telling the children they have to go, you are telling them they don’t have to go. In most states, the parent with residential/physical custody is obligated to have children abide by the parenting plan and if they don’t obligate the children, the residential parent is in violation of the parenting time agreement.

You may not even realize that you’re placing your children smack in the middle of your divorce issues, but a therapist can help show you how to better handle these discussions with your children so that you do not transfer negative messages to them, however inadvertently.

Going to therapy will make your life easier.

So many of my clients have come into my office angry, and everything they do in the divorce process is motivated by that anger. There are others who are depressed and so crippled by it that they want other people to make their decisions for them. In both situations neither is happy with the final decisions/agreements. Some divorcing individuals have difficulty moving forward, and again the inability to move forward affects their ability to go through their divorce process. Most clients vent to their divorce attorney but really? Why are you paying your lawyer $250, $300, $400, $500 an hour to vent your anger when you could be paying the therapist for a hell of a lot less?

Whether it’s a mediation session or a settlement conference or your attorney is trying to have a meeting with you and you have all this anger, how can you reach a proper settlement? Or if you’re so depressed, how can you reach a settlement? If you are stuck in the mud because you can’t move forward, how can you make the best decisions for your future?

In my perfect world, both parties would seek therapy to guide them through the difficulties of divorce and help them learn how to deal with each other as divorced parents. lf divorcing clients could be more civil to each other and were able to think clearly while negotiating the issues, they would save so much time and money. In the Collaborative law process we have mental health professionals who are trained as coaches to help the parties deal with each other in a more civil manner. Even parties who are not divorcing through the collaborative process still can benefit from the training and experience of these individuals.

Almost all of the members of a divorcing family can benefit from therapy and depending upon the circumstances, insurance may cover some or all of it. From what I have seen in my practice, just having a professional there to listen to and talk you through what you’re feeling provides benefit. Don’t let your fear of being labeled prevent you from seeking the therapy you need.  


Parents With Disabilities Have Greater Risk of Losing Custody of Their Children

A report from the National Council on Disability finds that parents with physical or mental disabilities have a greater risk of losing custody of their children. The study says that the U.S. legal system needs to provide more support for these parents. National Public Radio recently discussed the study in detail.

Click here to listen to the National Public Radio broadcast from “Talk of the Nation.” If you prefer to read it, the transcript appears below.


This is TALK OF THE NATION. I’m Neal Conan in Washington. Raising a family can be difficult at times, but parents with disabilities face additional challenges. A new study from the National Council on Disability finds they face discrimination at any number of levels. They are much more likely to losecustody of their children. They are more often denied adoption, and women with disabilities may be denied fertility treatments.

Authors of the report argue that parents with disabilities don’t get the legal protection or support they need, but there are cases where removing a child from a parent’s custody may be the only option.

If you have personal insight as a child, as a social worker or as a parent with a disability, call and tell us your story, our phone number 800-989-8255. Email us, You can also join the conversation on our website. That’s at Click on TALK OF THE NATION.

Later in the program, Robert Lipsyte on the legacy of baseball union chief Marvin Miller. But we begin with Ella Callow, a lawyer who works with parents with disabilities and their families. She joins us now from a studio in Berkeley, California. Good to have you with us today.

ELLA CALLOW: Hi Neal, thank you for having me.

CONAN: And reports like this one, instructive but necessarily about broad strokes. Can you tell us about one family and what happened that kind of encapsulates these findings?

CALLOW: Yeah absolutely. This report is really – you know, I say it’s more like a compendium. It has so many examples and so many families. But I think that one family that I’ve worked with for a number of years sort of from the beginning of the process through hopefully soon completion really encapsulates the issue for me.

These are two parents who both have intellectual disabilities and are in a Midwestern area where there are not a great deal of resources available to them as people with disabilities. However, their child was removed from them at birth, basically, or just soon thereafter.

There was no abuse, there was no neglect, there was simply speculation that based on their disability and, you know, based on their IQ that they would be unfit to parent at some point, that their disability in and of itself posed a danger to their infant child.

I those are the most troubling types of cases because the people making the decisions often are not terrible well-versed in parenting with a disability. They don’t know, for example, that we have 20 years of research that shows that IQ is not predictive of parenting capacity in and of itself, and yet IQ testing is heavily relied on quite frequently to justify removals.

This family went to great efforts with support people to reach out and find resources. They contacted us, and we were able to ourselves – you cold-call universities in the state and find a psychologist who had familiarity with this population. She came, did a full assessment, came up with an excellent plan to safely reunify the child with her family over time.

And the plan was refused. The state refused to pick it up. They really didn’t want to deal with it, didn’t want to engage it. They just saw the alternative of this child remaining with her foster parent or being adopted as superior as an option to returning to her family.

They moved forward to have the parents’ rights terminated. Fortunately in this particular state, and very unusually child welfare cases are heard by juries. And so the jury found that the state had not met its obligation and had to try to work the plan or try to work with the family towards reunification, and they’re still in that process at this point.

We, you know, were unable to trigger findings by either Health and Human Services or involvement by the Department of Justice in the case. The Department of Justice doesn’t have the clearest jurisdiction over these types of issues, that’s Health and Human Services. But we were never able to get anyone to really find that this was discrimination.

And that’s sort of the problem, that after 25 years of working on this issue, very clear legal constitutional strategies to question the laws that make removal so easy has not emerged.

CONAN: This goes state by state, and you were talking about parents with cognitive disabilities. How old is the child now?

CALLOW: She’s four years old, and they’ve been in contact with her, and she is in their area, and they’re lucky because in many of these cases, the children, they really have no contact, or they’re moved quite a distance out of either necessity, there’s no one locally, or because the child – and many children in the child welfare system have disabilities themselves.

The child needs some sort of special care, and so they’re removed to a further location.

CONAN: Joining us now is Robyn Powell, who is an attorney advisor at the National Council on Disability and co-author of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children,” joins us from Cambridge, Massachusetts. Good of you to be with us today.

ROBYN POWELL: Thank you for having me.

CONAN: And we’re talking not just about people with cognitive disabilities but people with physical disabilities, too.

POWELL: Absolutely. This covers people with varying disabilities: people who are blind, people who are deaf, people who have psychiatric disabilities, people who have mobility disabilities. It’s an issue across disability.

CONAN: And as I’m sure you know better than I do, some of those people would say wait a minute, we don’t have disabilities.

POWELL: Oh absolutely, and so the estimates that currently 4.1 million disabled parents exist in the United States is certainly an underestimate, by and far.

CONAN: And you’ll forgive me, but why isn’t this covered under the Americans With Disabilities Act?

POWELL: Well, that’s an interesting question, and in the report, we argue that it is. Here we are 22 years after the passage of the ADA, and we have state laws that state that disability can be ground for termination of parental rights. I believe, the National Council on Disability believes, that this is in clear violation of the ADA.

CONAN: And I guess that remains to be – you remain to find a judge that will agree with you.

POWELL: Absolutely, and unfortunately it’s probably going to have to go to the Supreme Court to have that decided.

CONAN: In the meantime, we have stories like these, and the story that Ella Callow was telling us, that can be replicated for people who are blind, for people who are deaf.

POWELL: Yes absolutely. In Missouri back in 2010, we had a blind couple who lost custody of their child two days after she was born simply because a nurse oversaw that the mother was having trouble breastfeeding, which many new mothers do, and she reported it to Social Services that she thought that these parents were going to be unfit because they were blind.

The couple then had to endure a long fight. It was 57 days of not having their newborn with them. So this happens often, and it happens, again, across all disabilities.

CONAN: Let’s get some callers in on the conversation. We want to hear from those of you with insight into this, as parents with disabilities, as children of those parents or social workers yourselves, 800-989-8255. Email us, And Scott’s(ph) on the line with us from Pleasant Hill in California.

SCOTT: Yeah Neal, thank you for taking the call. I can’t believe how timely this is. My name is Scott, and I graduated Yale in ’91, and I have no cognitive problems, but I’ve had Hodgkin’s lymphoma four times. I was a Wall Street whistleblower, and currently I’m in – I spent about $40,000 that I don’t have, I’m permanently disabled, from bone marrow transplant, toxic treatments, et cetera.

But I’m OK now, and my twin daughters that we had through fertility treatments are about to be ruled through a public mediator that spent – went way over the allocated two-hour time limit. She spent four hours with us, but the entire – and I really try to be accurate with my statements – the – almost the entire four hours was spent where the mother of our girls and the court mediator, who is I think a social worker, a licensed clinical social worker, were on the offensive, asking me as sweat was pouring down my face because – and I was wearing a jacket and tie, and I tried so hard – that what was my team to support me.

And then, you know, as far as if I couldn’t walk that day, and I can get through taking care of my girls on a day or two, and I’ll rest on the third when they go back to their mom, that wasn’t even an issue. The mom painted a picture that wasn’t accurate.

And then finally, and I’ll try to be brief here, when the report came out, the judge even said that after reading the mediator’s report, which they accept because of the caseloads, they accept about nine out of 10, and the lawyer in Berkeley can correct me, but about 90 percent are accepted by the judges almost verbatim because they have to look at other factors in the divorce, separation case.

The judge ruled that this – it looked like a reunification plan, as if I were a felon getting out of jail after five years. And I just, I was shaking in the courtroom. I couldn’t believe what I was hearing. So but anyway, I’m still about to lose custody, and I’ll need supervised visits, and I’m a perfectly capable father and want to be.

CONAN: Ella Callow, there are divorce cases, it would seem, and child custody cases stemming from them, I guess just on the basis of the statistics, there’s a lot of people in Scott’s situation.

CALLOW: Wow yeah, Scott brought up so many issues, and first of all, I’m so sorry for him that he’s dealing with this. It’s so difficult to be going through a custody battle in and of itself and then facing sort of discriminatory treatment at the same time is – just makes it unbearable for many people.

A couple of things he mentioned, you know, I would like to speak to. One yes, this is very common. And what people don’t realize is that while termination of parental rights, the jurisprudence involves the 14th Amendment, and so there’s a bit of a higher standard for the state to remove a child, that they have to show theoretically that a parent is unfit.

In family law cases, the standard is much lower. It’s the best interest of the child standard, and you’re not having the state intervene and take a child, it’s between two equally situated parents. So these parents sometimes face an even greater uphill battle, and they have no right to counsel, whereas in most termination of parental rights, child welfare cases, they do have counsel, even if they’re overwhelmed counsel.

The second thing is that he’s correct. Mediators are – the decisions of mediators on custody are followed in the state of California, where he’s located, upwards of 90 percent of the time. So if you lose in mediation, you’re going to have a very difficult time moving the case in the other direction. And social workers, and I have a social welfare degree from UC Berkeley, and there are wonderful social workers out there, but I’ll tell you that in my training and my experience, they don’t get much education on this topic despite the high number of parents they will encounter, especially if they’re working in child welfare.

But in either family or child welfare courts, they will be dealing with parental disability, and they’re not provided the education around what are best practices of these parents, what are assumptions and attitudinal biases you need to be aware of when working with them, when do you need to reach out for consultation or put into your reports that you don’t have expertise in this area. So it is problematic.

CONAN: And he also mentioned that his wife, or ex-wife I guess, was misrepresenting the facts, and obviously we don’t know the facts in this particular case, but that’s hardly unusual in some – in divorce cases.

CALLOW: Yeah, it’s – you know, I think we all understand as a society that it’s a time no one plans to be in, and emotions run very high, and everything tends to look more awful, and so paint worse pictures of one another, and disability can be mud they throw at the wall, seeing if it sticks.

CONAN: Scott, thank you very much for the call, and we’re sorry for your situation. We hope things work out.

SCOTT: How can I get a transcript? Thank you, Neal.

CONAN: Go to after the show is off the air, and we can help you out with that. Scott joined us from Pleasantville – Pleasant Hill, California. Stay with us. We’re talking about the rights of parents with disabilities. It’s the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION from NPR News. I’m Neal Conan. A new study from the National Council on Disability estimates that more than six million children in the U.S. have parents with disabilities, and those with psychiatric or intellectual disabilities lose custody of their children at an incredible rate, as much as 80 percent of the time.

Clearly there are some cases where removing a child is necessary for the child’s health and safety, but the report’s authors believe that’s not the story here, that discrimination is at the root of these numbers. The Americans With Disabilities Act is supposed to protect those parents, but the report finds it’s not working out that way.

If this is your story, if you’ve been part of it as a child, a social worker or a parent, we’d like to hear from you, 800-989-8255. Email us, You can also join the conversation on our website. That’s at Click on TALK OF THE NATION.

Robyn Powell, co-author of the National Council on Disability study, and Ella Callow of the National Center for Parents with Disabilities and Their Families, are our guests. And let’s see if we can get another call in. This is Leila(ph), Leila with us from Spring Harbor in Michigan.



LEILA: Hi, Neal.

CONAN: Go ahead, please.

LEILA: Well, I’m a licensed clinical social worker, and I actually practice in Indiana, and I’m really proud of our state. I don’t feel at all like we discriminate individuals with disabilities. I’ve worked with, you know, parents on both ends of the spectrum where I felt like I was placed in a home where it wasn’t safe, and we made every attempt to unify the parent with the children.

And then on the other end I’ve had a quadriplegic, you know, family that wants to have children, and we’ve helped to facilitate adoption to make that possible for that family. One family in particular where it was unfortunate, you know, we had two parents with intellectual disabilities, and the mom kept having multiple miscarriages, she didn’t know she was pregnant.

When I actually came into the home to work with the family and provide wraparound services, I mean she had a five-year-old, a three-year-old, a one-year-old, and then she had twins. She didn’t know she was pregnant, ended up actually losing one of the twins and the other baby was a high medical needs situation.

So I feel like – I don’t know what states this study included, but I feel in Indiana we really try to make every effort to provide services to families with special needs.

CONAN: And that decisions are made on a case-by-case basis and not reflexively saying if you’ve got disabilities, you’re disqualified.

LEILA: Absolutely, and we have great judges in our community that really work hard to make it possible to give supports to these types of families. But again, you know, in all reality it’s been my experience when you have families with some medical issues or high special needs, oftentimes the children have high special needs that require, you know, extra services that maybe some parents aren’t able to provide.

And if they don’t have family support, there has to be an alternative plan.

CONAN: Robyn Powell, did you look at Indiana?

POWELL: We looked across the country, and in our report we do show that over two-thirds of the states in the United States, their child welfare laws allow courts to reach the determination that a parent is unfit on the basis of the parent’s disability. I’m not sure at the moment whether Indiana is one of those states.

CALLOW: Indiana is not.

POWELL: Indiana is not. Okay.

CALLOW: No, so that is a difference.

POWELL: Right, absolutely, as Ella said, it’s absolutely the difference there.

CONAN: Well, Leila, thanks very much for the call.

LEILA: …to Indiana and see what we’re doing different.

CONAN: Thank you very much.

CALLOW: You know, and I also want to add that, you know, she touched on something really important, which is that families where the parents have greater needs themselves, sometimes the children do as well. The problem is that because the discrimination has been so incredibly pervasive over so many decades, and these parents face so much discrimination in their day-to-day lives, they’re often fearful of reaching out for any help because they understand that it renders them overexposed.

And once they become involved with that system, they don’t trust that their disability will not be used as something that grounds a removal as opposed to something that secures services for them. And that’s very frightening to us.

CONAN: Joining us now is Linda Spears, vice president of policy and public affairs at the Child Welfare League of America, joining us from her home in Upper Marlboro, Maryland. Thanks very much for being with us.

LINDA SPEARS: Good afternoon, thank you, Neal.

CONAN: And I knew these stories speak powerfully to you. I’m sure you have experience where these are awful decisions, sometimes difficult to make.

SPEARS: They are difficult decisions to make, and I think that there are a variety of factors that contribute and that say that I think everyone is right in this scenario, that there are lots of good workers out there trying to do the right thing, and at the same time there is an awful lot of discrimination and bias.

And I would differentiate between bias at the worker level and bias at the systemic level that affects these families, and I think even when workers try hard, there’s often bias at the systemic level – a lack of resources targeted to these families, a lack of policy that supports getting families preventive services before a child welfare intervention is needed.

The nation is replete with a lack of prevention and early intervention services for all kinds of families in the child welfare system. But I think that the impact on very vulnerable adults with disabilities, children with disabilities, can be very disproportionate. So it’s a complicated question.

CONAN: You raise an interesting point, though, about resources. There are situations where either through interventions of one sort of another, early intervention, as you mentioned, but also either physical or having somebody come by the house every once in a while, where that might make it possible for people to keep their children.

SPEARS: Uh-huh. Uh-huh. I mean we’ve – you know, exactly. I look at the system – I have elderly parents. I look at the system we have in our country, which is woefully inadequate but still exists, that provides elderly folks with in-home aid, with support services, where the variety of things to enable them to maintain their independent functioning for as long as they are health-wise able to.

We don’t have such a thing for people with disabilities who are parenting. We may have some things for them as disabled individuals that function well, but as parents, in their role as parents, there’s not a lot out there that really targets this population of families, provides them with supports so that they’re not at risk of getting into trouble and so that they’re not afraid to go and access the service, as Robyn just mentioned.

Families are often fearful to go to the child welfare system for preventive or early intervention services, and that’s with good reason. The child welfare system is designed in a way that is really oriented towards punitive measures, toward deficit functioning. Many child welfare systems are trying to switch that orientation, but we have a statutory framework in this country that says failing to parent gets you support and not desiring to parent.

CONAN: That’s interesting.

SPEARS: And I think that’s a really fundamental problem in the way that we provide our services. Now, that said, we don’t want, you know, sort of a policy and government overreach in the families’ lives. But at the same time, when families struggle, when families need support and don’t have any place to go, and then you set up an intervention so that it punishes them for seeking or needing help, it seems unreasonable.

CONAN: Here’s – I just wanted to get to this email from Diane(ph) in Battle Creek in Michigan: My husband’s aunt is intellectually challenged and is married to a man also intellectually challenged. They both hold jobs and own their home. Before they got married, however, my husband’s grandmother, the mother of the aunt, had her daughter, the aunt, sterilized so she could not have any children.

The rationale was the couple would not have been able to care for the child. And Ella Callow, does that sort of thing go on?

CALLOW: Yeah, I mean we have 100 years of really bad policy around parenting with this population, sadly. You know, sterilization, which render people physically unable to have children, and institutionalization, which segregated them out of society so they didn’t have opportunity to become parents, were the way this population was dealt with.

Eugenics is based largely on concerns that they would reproduce and that it would be bad for children and bad for society. After de-institutionalization and this sort of – the disability self-determination movement, disability rights movement, they went out into the world and the mantra became not it’s bad for society but it’s bad for children, for them to have children.

And there are still states with laws on the book that allow for sterilization, though it’s very few, and it’s through judicial process at this point. But people are talked into it. And I think, you know, Robyn can speak to the issue that women with disabilities face when they’re interfacing with the medical community, the assumptions that are made about whether they should have children and what are the proper choices for them.

CONAN: And Robyn, I wanted to ask you particularly about fertility treatments.

POWELL: Absolutely, well, first back to what Ella had mentioned. I’m a woman with a physical disability, and I can’t tell you how many times I’ve been offered a hysterectomy.

So it was not even through just sterilization, through traditional systems. But every time I go to the doctors, they suggest that for me. I don’t have a medical reason to have one. I’m only 31 years old. I’d like to have children. And so there is this belief among society – and the health care profession, as well – that people with disabilities do not want to have children or cannot – want – have children, and so that carries on to the fertility treatment. Providers of assisted reproductive technologies are often discriminating against prospective parents who have disabilities based solely on their presumption that this individual should not have a child.

CONAN: Let’s see if we get another caller in. This is Rachel, Rachel with us from Hampton in South Dakota.

RACHEL: Yes. Thank you. I’m coming from being a children’s advocate in the hospital setting. I’m actually a child life specialist, which is not the same as a social worker. We work with children and families to promote ideal development, and also to try and prevent unnecessary stress and trauma and to facilitate coping for families. However, often, I came across – I don’t want to say battles, but maybe a battle of wills with sometimes social work staff, sometimes physicians, when they would realize that one of the kids – when a child was sent home, and perhaps they were being sent home with a medication regimen, or if they had a chronic illness, that when the parents were illiterate, that meant they were unable to care for their children.

CONAN: Illiterate?

RACHEL: And I thought…


RACHEL: Yes. And I thought…

CONAN: There were several thousand, tens of thousands of years of human history where all parents were illiterate.


RACHEL: Well, that’s…

POWELL: Right.

RACHEL: …the whole thing, and I would then – you know, well, they have to give the medicine and they have to give it at the right time. And I, you know, constantly set up charts and show them how I – you know, we can make a chart, and this parent – you know, these parents would show unbelievable care for their children in the hospital. And then suddenly, it was, oh, my gosh. This mom can’t read, and this kid has sickle cell disease. Well, this kid has been coming to us for 12 years, and no one’s ever noticed that before? Because I know I’ve made charts for her for 10 years.

And so it’s been really – that, to me, was one of the things that was most difficult, is when kids come into the hospital, people haven’t recognize it or acknowledge it or had a problem with it yet. But if some child came in, let’s say, because she had a serious infection and said she had to go home on an antibiotic regimen, or maybe a parent had to be taught how to clean a child’s central line, but these parents showed all of – they were doing all of that in the hospital. And then we would get recommendations that, you know, perhaps this child should go to foster care because for whatever reason, whatever the disability be – and I’d tell you illiteracy is a big one. But that, you know, they just may not be able to do this, even though they’ve proven themselves. And so fortunately, I am a strong will and…


CONAN: Sounds like it.


RACHEL: …and a very strong advocate because most of the time, I was able to prove that, no, I think we’re absolutely wrong and documenting them. You have to document, document, document in the hospital what you’ve seen this parent do so that people know, because that’s the other thing. When people come in and parents are – who had disabilities and they’re noticeable, instantly, they are labeled by many people in a hospital setting.


RACHEL: And right away, discharge to foster care is being considered from almost the day they come into the hospital.

CONAN: Rachel, thank you very much. That’s an alarming story…


CONAN: …but thank you.


RACHEL: It is, but it’s something for people to be aware and to help these parents.

CONAN: Thank you again. We’re talking…

CALLOW: You know – I’m sorry, Neal. I just wanted to interject. You know, between the first caller, Neal, who’s in our area didn’t contact us, and Rachel who’s out there fighting battles in South Dakota on her own, I do want to mention that the National Center, which I direct legal programs for, is Through the Looking Glass. Our agency, we’re a local agency in Berkeley. We serve about 400 families a year doing preventative services, assessments of parents so that we have generated evidence that parents can or cannot safely parent.

We work with children with disabilities, as well. And, you know, if people like Rachel feel like they’re isolated and they want some help, we have free legal technical assistance and, you know, can provide a lot of information to them, and people like, Neal, you know, contact us.

CONAN: Ella Callow is legal program director at the National Center for Parents with Disabilities. Also with us, Robyn Powell, attorney adviser at the National Council on Disability, and Linda Spears, vice president of policy and public affairs at the Child Welfare League of America. You’re listening to TALK OF THE NATION, from NPR News. And, Robyn Powell, let me turn back to you for a moment. Is inability to read defined as a disability?

POWELL: It can be, actually, yes. If it is really to an intellectual disability, I undoubtedly think it could be. And it’s that – what she brought up is a huge issue. When parents with disabilities bring their children either into the hospital or even to the pediatrician, they’re facing health care providers that have these biases. We spoke with parents who had their child’s pediatrician report them to child welfare for no reason. The investigation was completely unfounded, but they believe it was really to their disability.

And again, this is happening often, and this is a detriment not only to the parent, but it’s a detriment to the child. It’s very stressful to have your parents being investigated. It has huge cost to both the parent and the child.

CONAN: There is another, I guess, definition of disability. To include the deaf would be – many would find offensive. They have, obviously, their own language, their own culture. This is an entire community.

POWELL: Yes. That’s a great point, and some deaf folks do not consider themselves disabled. Nonetheless, we did talk with many deaf parents when we were writing this report, and they have similar issues. They’ve also encountered bias and discrimination within the child welfare system, where they bring up language issues. They state that the children are not learning a language because sign language is their first language at home. And so the deaf community is experiencing similar issues, absolutely.

CONAN: And we’re talking about legal recourse on the federal level, or is this going to be a battle that worked out state by state?

POWELL: Well, I think it’s going to have to involve both state level and federal level mediation. We really need to change the law federally. I mean, it’s certainly the best and most comprehensive way to approach this. But nonetheless, states need to also look at their child welfare centers, look at theirfamily law statutes and change how disability is included – remove disability as a ground for termination of parental rights. In our report, we offer model legislation, which we urge both the states and the national government to really adopt as soon as possible, urging Congress to look at this issue, similarly to how they looked at the Indian Child Welfare Act. When that was adopted, that was adopted because Native American families were encountering similar barriers.

CONAN: Robyn Powell, coauthor of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children.” Thank you very much for your time.

POWELL: Thank you.

CONAN: Ella Callow, thank you for your time, as well.

CALLOW: Thank you, Neal.

CONAN: And we’d also like to thank Linda Spears of the policy and Public Affairs Center at the Child Welfare League of America. Coming up next: the legacy of Marvin Miller. This is NPR News.


‘Divorce from hell’ began with $5,400 monthly alimony offer, ended with $1,500 installments

A month after their 2008 divorce case was filed in Pinellas County, Fla., Terry Power offered to pay his wife of nearly 20 years $5,400 per month in alimony until he retired, and $50,000 in cash.

He also was willing to give Murielle Marie Helene Fournier half of the contents of their opulent home; it was upside down, so they had no equity in it, the Tampa Bay Times reports.

Both in their 50s, the two were used to living an upscale lifestyle. But Power’s $250,000-a-year business wasn’t doing well, and while he and Fournier spent nearly five years litigating what the newspaper describes as a “divorce from hell,” some $400,000 went to attorney and expert fees.

Initially cooperative, Power became more angry and resistant the longer the process continued. After enduring the litigation tactics employed by his wife’s lawyers and watching the costs of the case mount, he began representing himself and used some of the same tactics. He also went further, defying court orders and refused to pay bills he said he didn’t have the money to satisfy. At one point, Fournier told a Times reporter, she went for weeks without running water at home, because it had been shut off.

Judges in theory had the power to enforce their orders, but often didn’t take decisive action as the hard-fought case dragged on, the newspaper recounts. (Threatened at one point with a 30-day jail term if he didn’t ante up, Power paid what was required.) The court system also appeared unable to deal effectively with a situation in which much the same arguments were, seemingly, made again and again without resolution.

“I’m trapped in the system, I can never break out. It’s like Groundhog Day,” Power told the newspaper at one point, referring to the movie in which Bill Murray’s character relives the same 24-hour period again and again.

In November, a decision arrived in Power’s mail from the judge—the fourth to preside over the case. It awarded Fournier $1,500 per month in permanent alimony. However, Fournier would have to make a $525 per month child support payment to Power, resulting in an effective alimony amount of just under $1,000, in the immediate future.

Both Fournier and Power told the newspaper the legal system had failed them. Power, saying he was working to get his business back in the black, planned to contest the $87,000 he owed in back alimony. Fournier, who reportedly had turned down his initial $5,400-a-month alimony offer because her legal counsel had told her she could do better, was bitter.

“The thing is, right now Terry’s living very, very well, and I have no money,” she told the newspaper. “He was able to do whatever he wanted with this system…he got angrier and angrier, and it got out of control. If you look at Terry, he didn’t follow I don’t know how many orders, and he was never held accountable.”



Adoption Case Brings Rare Family Law Dispute To High Court

Take the usual agony of an adoption dispute. Add in the disgraceful U.S. history of ripping Indian children from their Native American families. Mix in a dose of initial fatherly abandonment. And there you have it — a poisonous and painful legal cocktail that goes before the U.S. Supreme Court on Tuesday.

At issue is the reach of the Indian Child Welfare Act, known as ICWA. The law was enacted in 1978 to protect Native American tribes from having their children almost literally stolen away and given to non-Indian adoptive or foster parents.

Two of the justices likely have a special interest in the case: Chief Justice John Roberts and Justice Clarence Thomas both have adopted children.

The case before them and the other justices is a tragic saga. Christy Maldonado, an Oklahoma resident of primarily Hispanic heritage, was engaged to be married to Dusten Brown, a member of the Cherokee Nation, who is technically about 2 percent Native American. In 2009, Christy, a casino worker and single mother of two, told Dusten she was pregnant. But the relationship deteriorated and she broke off the engagement.

Beyond these facts, the protagonists in this story agree on little. One fact, though, is beyond dispute: Whatever happened in the first few months of the pregnancy, Dusten eventually texted Christy that he was giving up his parental rights and would not support the child.

“It punched me in the gut, knowing that the father of my child did not want her at all,” Christy says. “That’s when I pretty much decided I had to do something because I could barely even put food on the table for the kids at that time.”

An Adoption, And A Legal Challenge

Christy decided to put her child up for adoption. Through an agency, she found a couple in South Carolina she liked, Matt and Melanie Capobianco, and the three agreed to an open adoption. The Capobiancos helped support Christy in the last months of the pregnancy and were in the delivery room for the birth. Matt cut the umbilical cord.

A month prior to the birth, Christy, through her lawyer, sent a letter notifying the Cherokee Nation of her adoption plans, giving them a chance to intervene under the Indian Child Welfare Act. The tribe said it had no record of Dusten Brown as a tribal member. So the adoption went forward.

Four months after the birth of the baby girl — as Dusten was about to deploy to Iraq, and as the adoption was about to become final — he was served with papers notifying him of the adoption. Dusten signed off on them, inadvertently, he says. But within days he filed a formal objection, invoking the Indian Child Welfare Act. He says that in agreeing to give up his parental rights, he thought he was relinquishing his parental rights to Christy.

“I just figured the best interest would be … for [Christy] to have the full custody of her, but for me to still be in the picture — be able to come visit and stuff,” he says.

But after learning about the adoption, he sought full custody of his daughter. While there is no doubt that he would have had no leg to stand on under state law, by the time the case went to court, the Cherokee Nation had located him in its records. And the South Carolina courts ruled that the Indian Child Welfare Act trumped state law. In December 2011, the South Carolina Supreme Court ordered the Capobiancos to give their then-2-year-old daughter to her biological father, a man she had never met.

“It was by far the worst day of our lives and I’m sure of hers,” says Matt Capobianco. “She cried after us,” Melanie adds.

The adoptive parents appealed to the U.S. Supreme Court, backed by the birth mother and the guardian ad litem, appointed by the South Carolina family court to represent the best interests of the child.

Normally, the Supreme Court does not hear such family law disputes, but this case is a test of the Indian Child Welfare Act.

Competing Views

The law was enacted after extensive congressional investigations and hearings revealed that 35 to 40 percent of Native American children were being improperly removed from their families and given to white adoptive and foster parents. Charles Rothfeld, Dusten Brown’s lawyer, notes that these abuses were “catastrophic” for the tribes, which “were at risk of becoming extinct because their children were literally being taken away from them.”

To combat the dire situation, ICWA established a chain of adoptive preferences for children with Indian heritage. In the event that neither parent could take custody, other Indian family members were to have priority, and after that, tribal adoptive parents.

Just how you see this case is something of a Rorschach test, with the adoptive parents seeing it one way, the father another, the mother yet another, and the court-appointed guardian still another.

As the adoptive parents see it, they were not stealing a child from an Indian parent because the only parent with Indian heritage had already given up his parental rights. And as the Capobiancos’ lawyer, Lisa Blatt, puts it, the federal law was meant to protect Indian children from being snatched from their existing Indian families.

Even if Dusten qualifies as “a parent” under the law, “the Indian Child Welfare Act only protects those parents who already have a prior custodial relationship,” she argues.

Not so, say the tribes. They see the case as an attempt to undo the protections that Congress established in the face of evidence that states were trampling on the rights of Native American parents. “Congress decided it had to step in,” says Rothfeld, and it did so by creating “special federal rules superseding state custody rules that would govern where Indian child custody was at stake.”

The case also is about the autonomy of a non-Indian mother. The birth mother’s lawyer, Lori Alvino McGill, contends that if Indian fathers can sweep in this way, based only on biology, and override the birth mother’s decision, why couldn’t sperm donors or rapists who are Indian do the same? “No other set of men can choose to kind of sit back, renounce all responsibility but hold a back-pocket veto to an adoption choice,” she says.

The guardian ad litem, represented by lawyer Paul Clement, scathingly says there is “no box” like the one Dusten Brown is seeking to check.

“Generally you’re not allowed to say, ‘Well, look, I don’t really want to give you any financial support, I don’t really want to have much to do with this child, but I do really want you, person I’ve just gotten pregnant, I want you to take care of this child, and I don’t want you to do something like give up this child for adoption,’ ” he says.

What’s more, he adds, under state law, it is the best interests of the child that prevail. “Except if this federal statute applies and applies only on the basis of her Indian heritage, well, then everything changes. … It just completely shifts the focus of the whole proceeding around based on race,” says Clement, and “that’s something that we generally wouldn’t think the Constitution allows.”

A Heartbreaking Case

Native Americans bristle at the charge of racial classification. Indian tribes, they note, are quasi-sovereign nations recognized by the U.S. Constitution.

“This law does not apply because of race,” says Chrissi Nimmo, assistant attorney general of the Cherokee Nation. “This father was a citizen of the [Cherokee Nation’s] government; it’s not just if you have Indian in your background.”

Whichever way the Supreme Court rules in June, the case of “Baby Girl,” as she is referred to in the briefs, is heartbreaking. No one disputes that she was sublimely happy with her adoptive parents, and videos of her with her father, now married, seem to show a little girl equally happy.

Her birth mother says that while she spent time with her child at the adoptive parents’ home in South Carolina and listened to her child on the phone regularly, she now does not even know where her daughter lives. Neither do the adoptive parents. Dusten Brown says he has kept his daughter apart for the past 16 months to allow her to become used to her new home, away from the chaos and bitterness of the legal fight.