New foster care law gets tough on parents with criminal pasts

PHOTO BY ROBERT COHEN Paul Warren hopes to regain custody of his son Alex after his parental rights were terminated following a brain injury suffered in a construction accident.

By Matthew Franck

St. Louis Post-Dispatch

11/21/04

Instead, a new Missouri law may make it impossible for Warren and an untold number of other parents with criminal histories to reclaim their children from foster care.

After the Supreme Court ruling on Warren's case was announced in July, the father believed that his son would soon leave foster care. The reunion, he thought, would end a struggle that began four years ago when he fell off a ladder at work. Soon after, his son landed in state custody.

But despite having the state's highest court on his side, Warren has yet to be granted even a visit with his son. Now the father is running up against months of court delays and the new foster care law.

"Inside I'm tore up about not seeing my son because he's the only child I have, " Warren said.

Ultimately, the case could decide not only the future of a 6-year-old boy, but the constitutionality of the new foster care law itself, which was designed to protect children from sex offenders.

And the consequences could be more far reaching still.

State officials say that as the law is applied statewide, numerous other parents could find themselves in Warren's situation because of past criminal convictions. And sex offenses aren't the only crimes listed in the law.

Many say the law could be interpreted to work against parents who were convicted of other forms of child endangerment, even including selling fireworks to children.

Consequently, the state could face the burden of having to find adoptive homes for children who might previously have been reunited with their parents.

Critics say the new law sets up an unfair system for parents like Warren who have already done their time for crimes. Under the law, those parents could forever lose their children after one run-in with the foster care system.

That could potentially include cases where parents were unable to keep utilities on or did not get a child to school often enough.

Mary Fox, a lawyer who is assigned by the St. Louis Family Court to represent parents in foster care cases, said the law could affect more than 10 percent of her clients.

"I think it's a violation of these parents' rights, " she said. "You don't have to be a model parent to have the right to raise your child."

Rep. Margaret Donnelly, D-Richmond Heights, voted against the new law, in part, because she believes it is too broadly worded and takes too much authority away from judges. She said other lawmakers were warned that the law could be deemed unconstitutional.

But despite Donnelly's reservations, she said she supports the law's core aim of barring convicted sex offenders like Warren from regaining custody of children infoster care.

"My belief is that if you are a sex offender I don't think you should be a full-time caregiver of a child, " she said.

Whether preventing those sex offenders from being reunited with their children is just or unjust is an issue that now seems destined for court scrutiny.

Emblematic of that debate is the Paul Warren case, which from its inception has presented agonizing ethical and legal dilemmas.

Losing parental rights

Viewed from one perspective, Warren is not only a convicted child sex offender, but one with a brain injury that impairs his judgment and ability to support a family.

On the other hand, he's served his time for crimes committed 20 years ago, which were unrelated to the son he now wants to raise. And Warren can accurately say that he would not have lost custody of his son had he not been injured at work.

Warren fell off a 40-foot ladder doing construction in January 2000, landing him in a residential center for months of physical therapy. During that time, Warren's wife, who he has since divorced, lost custody of their 2-year-old son to foster care after she was investigated for child neglect.

After leaving a rehab center, Warren tried but failed to get his son out of foster care. The Jefferson County Family Court ruled that his brain injury made him mentally incapable of raising the boy. Warren's parental rights were terminated, qualifying the boy for adoption.

A factor in that court case was Warren's history as a sexual offender. In 1986 he was convicted of sexually abusing two members of his extended family. He served eight years for the crimes.

But since the crimes happened years before the birth of his son, the Supreme Court ruled, in essence, that they were not sufficient grounds for denying his parental rights. The ruling also questioned whether the courts had adequately established that he lacked the mental ability to take care of the boy.

The ruling has not yet led to a reunion; it means only that Warren has regained his parental rights. The Jefferson County Family Court now must determine if Warren is fit to be reunited with his son.

Court officials won't talk about the case for confidentiality reasons. Warren said he is scheduled to undergo a battery of psychological tests in coming weeks. But according to court documents provided by Warren, that process would seem doomed by the new foster care law.

The documents indicate that services designed to reunite Warren with his son have been withheld, because the new law could prevent such a reunion.

Warren's lawyer, Craig Kallen, said he'll continue to push for his client, but he increasingly believes that the only alternative may be to try to strike down the law itself.

New law causes conflict

When lawmakers approved a sweeping foster care law this spring, they heralded it as the culmination of more than two years of work that began shortly after the death of a Springfield foster child.

In the process of approving the legislation, virtually no section of statute dealing with child protection was left untouched, with a litany of new standards passed in the hope of increasing child safety.

As part of that effort, some lawmakers sought to resolve what they saw as a conflict in Missouri law as it concerns child custody. For years, parents with sexual offenses have often been precluded under law from winning custody of their children in divorce proceedings.

Donnelly said lawmakers wanted a similar ban in the statutes dealing with foster children. She said she was among the lawmakers who supported that concept, reasoning that the standards for the foster care system should be no lower than in divorce cases as it concerns prior sex offenses.

Ruth Ehresman, of the group Citizens for Missouri's Children, is among many child advocates who say they support making it difficult for sex offenders to be reunited with children placed in foster care.

"We think that kids should be with their families, but we don't think that's absolute, " she said.

Still, Ehresman believes the law was poorly executed. "They were trying to do the right thing, but they weren't thinking, " she said.

Much of the criticism centers on the kinds of criminal offenses that would prevent foster care reunification.

Under the law, no foster child can be returned to a home where a parent or anyone else living there has been convicted of one of several crimes. For the most part, the offenses are felony sex crimes.

Lawmakers did exclude second-degree statutory rape convictions, but they included at least two statutes on child endangerment that need not involve sexual offenses.

As a result, the law could pertain to parents who have previously been found guilty of running a meth lab where children were present. Lesser offenses are included as well, such as selling fireworks to minors.

Court officials say the law, at a minimum, limits their ability to weigh prior crimes on a case-by-case basis.

St. Louis Family Court Judge Thomas Frawley said the law allows for no consideration when the crimes occurred, their circumstances or the possibility that parents have turned themselves around.

"It does seem to me that you ought to have opportunity of rehabilitation, " he said.

Others say the law has created confusion statewide, introducing a conflict between federal and state child protection laws.

No man's land

Just how many parents the law affects is unclear and may never be known.

At any given time, thousands of parents are working with the state to have their children returned to them from foster care. Many speculate that dozens of those parents may have prior criminal offenses that would prohibit them from reunifying with their children.

Kathleen DuBois, a lawyer who represents parents involved with the St. Louis County Family Court, said she's yet to have such a case come to her attention, but she predicts many are on their way.

Frawley, meanwhile, said he heard one such case in his St. Louis courtroom on Thursday, but could not provide specifics.

State officials say they lack the resources to review all foster care cases to see how many parents might have criminal convictions that would prohibit reunification.

State officials say case workers have, however, been informed of the new law and told to look for prior crimes in case files. But exactly how those cases should be handled is unclear to many.

That's because federal law requires parents to be offered help in working toward reclaiming their kids from foster care. In other words, Missouri case workers are obligated to move ahead as if reunification is possible, even though the new state law might prevent it.

Ehresman said that sets up a no man's land that could leave many cases in limbo as officials try to work through conflicts between state and federal law.

Warren and his lawyer say that's essentially where his case has seemed to wind up. The court is preparing to allow supervised visits between the father and son. Warren has also been asked to begin making support payments to the state.

But Warren won't have a court hearing until at least February, and he'll probably have to wait until May to truly have a shot at changing the outcome of his case.

By then, his son will have been in foster care for four years -- more than long enough to form bonds with the family that wants to adopt him.

While Warren waits, the court documents tell the story. In them, the boy is identified not only with his father's surname, but also with the last name of the foster parents, who want to offer their home to him for good.

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