ACLU of PA Sues Beaver County Child Welfare Agency Over Wrongful Seizure of Newborns

October 2, 2003 12:00 am

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Lawsuit is “”Opening Salvo”” Against Out-of-Control Child Welfare System


PITTSBURGH — The American Civil Liberties Union’s Greater Pittsburgh Chapter today filed a federal civil rights lawsuit on behalf of a young mother, Selina Underwood, saying that Beaver County officials violated her rights when they seized her children – including a day-old newborn — without evidence that they were in any danger.

“”A parent’s right to care for her children is the among the most important we have, which is why the government cannot take a child unless it has clear and convincing evidence that the child is in imminent danger,”” said ACLU cooperating attorney James E. Mahood of the law firm Wilder & Mahood. “”In this case, county officials had no factual or legal basis to take either child.””

According to the ACLU lawsuit, Beaver County Children and Youth Services (BCCYS), its director and several employees violated Underwood’s constitutional rights when they seized her six-month-old infant in October 2001 and her one-day-old infant in February 2003, without any evidence that the children were in danger. The ACLU said the lawsuit was part of a larger effort to correct numerous constitutional problems in the Beaver County child welfare system.

The case began in the spring of 2001, several months after the birth of Underwood’s first child, William. Despite receiving adequate nourishment, the baby was failing to thrive, and doctors wrongly concluded that the reason was parental neglect. At Underwood’s insistence, William was flown to Children’s Hospital in Pittsburgh, where the doctors diagnosed a physical problem that William had from birth, a congenital bowel obstruction. Children’s Hospital successfully performed an emergency surgery to fix the problem.

Despite clear evidence that William’s problems were physical, the agency continued its attempts to remove the baby from Underwood’s care, and in October 2001 officials took William into custody on an emergency basis. The agency then erected numerous barriers to reunification, including scheduling supervised visits with Underwood’s four-month-old child for one hour once every two weeks at locations far from her home.

This past February, the agency seized Underwood’s newborn daughter Na’ Dayja solely because her first child was in foster care. The child was taken from the hospital one day after she was born.

Today’s lawsuit also named as defendants two court-appointed lawyers for Underwood, Joseph M. Spratt and Jeffrey R. Small. Both lawyers wrongly advised Underwood to agree to put the children in foster care even though there were absolutely no grounds for doing so and state law prohibits such agreements. The lawyers then took no action to help Underwood regain custody of the children or to prevent onerous and unreasonable preconditions to reunification imposed the state.

With the help of Mahood, a past president of the Pennsylvania Bar Association’s Family Law Section, the ACLU took on Underwood’s case in March 2003 and began the tedious court process of regaining custody of William and Na’Dayja.

The ACLU managed to regain for Underwood full custody of Na’Dayja in August, and the seven-month-old girl is now in her mother’s care. The ACLU has also been successful in reestablishing visitations with William, with a goal of reunification before year’s end. Separately, the ACLU is pursuing an appeal in Pennsylvania Superior Court to reverse the initial finding that William was ever in need of agency supervision.

In both cases, the ACLU said, blatant constitutional due process deficiencies in the juvenile court proceedings allowed the illegal actions to occur. Witold Walczak, the Pittsburgh ACLU’s Legal Director, said that the legal protections required to prevent unfair and illegal separations of parents from children “”appear to be defective at every important step in the Beaver County child welfare process, permitting miscarriages of justice like the ones in Ms. Underwood’s case.””

Walczak noted that the ACLU has identified several other recent cases in which BCCYS had illegally seized people’s children without sufficient factual or legal grounds, including one last week in which the ACLU helped a mother regain custody of a child who was taken from her after she filed a protection order against an abusive boyfriend.

“”Today’s lawsuit is merely the opening salvo in what will be a larger effort by the ACLU to reform unconstitutional practices in Beaver County’s child welfare system,”” Walczak said. “”Beaver County taxpayers must appreciate that running an unconstitutional child welfare system is going to cost them dearly and it’s not going to stop until the county corrects its many blatantly illegal policies and procedures.””

According to the ACLU, systemic problems in the Beaver County child welfare system include:

  • BCCYS removes children from parents’ care even when there is no evidence that the child is in imminent danger;
  • BCCYS removes children from parents’ custody even though obvious alternatives exist to separating parent and child;
  • After BCCYS removes a child from the home, they impose preconditions on the parents for return of the child that are completely unrelated to the underlying problem and are in some cases illegal under Pennsylvania law;
  • The County does not provide parents with lawyers when legally required to do so at the initial hearing after a child is removed;
  • When the County eventually does appoint attorneys, in 90 percent of the cases they violate state law by advising the parent to agree to foster care without requiring proof of abuse or neglect;
  • Court hearings are not fully recorded to permit subsequent review;
  • Court orders are neither docketed nor served upon parties after they are entered; and
  • Privately appointed lawyers never appeal decisions to remove a child from a parent, even when obvious grounds exist for doing so.

The legal complaint is online at /node/35116

In addition to Mahood and Walczak of the ACLU, attorneys in the case include the major downtown Pittsburgh law firm Kirkpatrick & Lockhart with lawyers Joseph L. Luciana III, Matthew J. Fader, Paul Berks and recently retired United States Magistrate Judge Kenneth J. Benson.

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