Despite the blaring siren from a security guard’s phone, Rogelio Ramon was still half asleep just after 6 on a January morning, sitting where he’d slept on a red chair in an East Flatbush, Brooklyn, church. Across from him in the crowded sanctuary, a half-dozen West African men recited the Quran on the chancel and a man from China talked with a woman on WhatsApp. Ramon, who is from Venezuela, put on the snug-fitting winter parka he’d found in a donation bin and walked out into the biting cold to figure out where to pass the day. It would be nearly 14 hours until another church, an hour and a half away by subway in Harlem, would take him in
Ramon had already spent a week crisscrossing the city in search of a safe place to lay his head. During his first month in New York he lived in a shelter, but he couldn’t stay. The city recently began limiting single adult migrants to a 30-day stay with an option to reapply for another 30 days, though the wait to get back in can be lengthy. New York hastily launched its new migrant reception system in the spring of 2022, and since then more than 170,000 people have passed through it. As with Ramon, some of them came on free buses from Texas, ending up in New York not because it was their chosen destination but because they had no other option. Many were part of Texas Gov. Greg Abbott’s initiative to funnel people entering the country into liberal cities and to export the stresses and tensions of the southern border into farflung parts of the country. New York is an attractive landing place because it is the only major U.S. city that’s required, pursuant to a four-decade-old consent decree, to provide a shelter to anyone in need.
But the arrival of more and more newcomers, often with no family or community waiting to absorb them, has taxed its shelter system, and it has forced a conflict over the future of the long-contested right-to-shelter rule, raising questions about how generous the city can and should be as migrants continue to arrive.
“The unfortunate reality is that we’ve been getting hundreds of people a day every day for nearly two years,” Kayla Mamelak, a spokesperson for Mayor Eric Adams, said. “We’re out of space and we’re out of money.” Officials recently estimated that the arrival of migrants will cost the city more than $10 billion over three years, and Adams has repeatedly called on the state and federal government to send more aid. The 30-day limits on an initial stay (60 days for families) have been a “success story,” Mamelak says, as a way to “nudge people into the next phase of their journey.” She said that only about a quarter of people who reach the shelter limit end up reapplying. “The goal is always self-sufficiency.”
But immigration and housing advocates say the system has left people waiting in untenable conditions for a new bed.
“The city is using the 30-day-limit and the reticketing process to make people miserable and hope they go away,” said Kathryn Kliff, an attorney with the Legal Aid Society’s Homeless Rights Project, which is in mediation with the city over the shelter requirement. Kliff acknowledges that the spike in recent arrivals has created new challenges for the city. But in years of city efforts to modify the requirements of the consent decree, single adults have never before been subjected to 30-day limits or left to wait for days on end in chairs or church pews to be assigned another bed. According to the city, the average wait time for single adults to be reassigned a shelter bed is eight days. Some wait weeks
New York City has taken measures to limit the number of people who end up sleeping on the streets and in trains while they wait for a bed, subcontracting a handful of churches and mosques to provide floor space or a pew to hundreds of people each night. Ramon slept in four different houses of worship, scattered on the edges of the vast city. He says that because he now spends his days waiting to be told where he can sleep that night, looking for food and riding the train from one church to another, he hasn’t had time to find work. “I can’t get a job because I have to go to the place to find out where to sleep,” Ramon said of his daily cycle. “You can’t get out of it.”
Ramon had arrived at the U.S.-Mexico border in early December. His niece and her children, who’d crossed with him into El Paso, Texas, took a bus to Chicago, where they had a friend. Ramon told border authorities that he, too, would be going to Chicago, and they assigned him a court date there in September. But the only free bus he was able to board in Texas was to New York. The city has offered to pay the costs to transport migrants elsewhere. But Ramon has come to realize that Chicago might be worse. “I can’t get to Chicago because I wouldn’t have a place to live there,” Ramon said. “Here at least there’s something.”
To reapply for a stay in a shelter, migrants travel to a city building in Manhattan’s East Village. The processing center issues each person a number that’s written on a wristband. When their number comes up, they’re supposed to get a bed. One night during a snowstorm, soon after he’d reached the 30-day limit, Ramon tried to sneak back into the shelter after a fight at a church left him rattled. But, he says, the shelter told him that he had to leave. Ramon tipped over an orange road construction drum and pushed his long, skinny torso in as far as he could. He stayed there until morning.
On his fourth night out of the shelter, Ramon left the processing center carrying a small drawstring bag packed with a blanket, an extra T-shirt, a toothbrush and a worn manila envelope of immigration papers. Though he knew the next church wouldn’t accept anyone until 8 p.m., he didn’t know what else to do after riding the train aimlessly for hours, so he tried the church anyway. He plodded along the snowy sidewalk, climbed up a flight of stone church stairs and peered through the padlocked metal gate into a row of cloisters. Nobody was there or at the next gate that led into an old cemetery. He decided to ride the train for a few more hours.
Ramon returned just before 8 p.m. Behind him in line, a Guinean man named Omar who’d spent 30 days in shelter and 11 nights in churches and mosques, said in French: “We don’t really bathe. We get to these churches at 8 p.m. and we stay until 6 a.m. when they kick us out, and we don’t wash.” A 64-year-old Peruvian man said sleeping on the hard floor made his back hurt but was better than sleeping on the train or on the street, which he’d done for several nights. Ramon found a spot on the floor and lay on the blue blanket that a man at the Randall’s Island shelter had given him a few weeks before.
In the morning, after the church turned the lights on and as he prepared to leave again, Ramon met another Venezuelan man, a 46-year-old former customs officer named Giovanni Larez, who seemed to have a handle on how to get food and find a place to shower.
The two men left the church before sunrise. Ramon followed Larez to the Port Authority bus terminal, where Larez had learned they could wash in a bathroom. They sat on the floor against the wall in the terminal for an hour until an officer started telling others sitting nearby to leave, so they rode the train downtown to the city’s processing center in the East Village. The worker gave them the address of a different church, the one in East Flatbush. They walked in circles and then rode the train for several more hours until they arrived at the new church.
Larez, who has braces from the days when he had money and time for an orthodontist, showed me a video of himself riding on top of a Mexican freight train, passing through the desert on his way north, and a photo of his hands and knees covered in bandages from when he jumped off a train to run from Mexican authorities who chased him and others off the trains. “This is not the hardest thing I’ve been through,” he said of his shuffle through the shelters and churches. He explained that he expects to be able to pay rent soon, when it warms up and he can get some real employment (he worked two days clearing debris on a construction site but hasn’t found anything since). He also said he plans to get through his court date in June and then move to Phoenix with a work permit.
On a Sunday morning, the two men rode the train to a corner in central Brooklyn where someone from a church drops a bag of sandwiches on the sidewalk every afternoon. Then they went in search of the next church where they’d sleep.
The following Wednesday afternoon, the men returned to the East Village processing center. The city had still not reached the numbers written on their wristbands. They stood in the rain in the park with a hundred or so other men and women, many wearing cheap plastic ponchos they’d gotten inside. Someone from a nearby bakery delivered a paper bag of end-of-the-day baguettes and other baked goods. Men bounded toward the bag and took what they could. As they did, the bag broke, wet from the rain, and cookies and pastries fell to the ground. The men backed up, most returning to the lampposts and trees they rested on. And then, one after another stepped forward to pick up the cookies from the ground.
By Thursday, Ramon and Larez’s numbers had reached the front of the queue, but they were told there were no available shelter beds. They came back the next day and were told the same thing. They went back to the corner for sandwiches and then to a church to sleep. They came back to the processing center on Saturday and Sunday and were again told there were no beds. Though city officials say that wait times for adult men seeking readmission to shelters for migrants averaged around eight days, it had already been 13 days for Ramon and 12 for Larez.
On Sunday afternoon, nine days after they started traveling the city together, Ramon and Larez got separated on the train. Larez looked for Ramon at the East Village center but didn’t find him. “I guess he decided to go his own way,” Larez said.
Three days later, the city’s processing center finally assigned Ramon a new bed for 30 more days. He put his winter coat back on and rode the train to a shelter.
In August 2009, Mindi, a 25-year-old struggling new parent, experienced what doctors later concluded was a psychotic episode. She had been staying in a cousin's spare basement room in De Soto, Kansas, while trying get on her feet after an unexpected pregnancy and an abusive relationship. She'd been depressed since her daughter was born and was becoming increasingly distrustful of her relatives.
Isolated, broke and scared, one Saturday morning, she cracked. She woke to change her 5-month-old daughter's diaper. When Mindi looked down, she believed the baby's genitals had been torn.
Mindi's mind raced for an explanation. The one she came to? That her baby had been raped the night before; that someone—she did not know who—had put sedatives in the air vents.
Mindi called her pediatrician's office. A receptionist told her to take her daughter to a children's hospital in nearby in Kansas City, Missouri. Doctors there found no evidence that the girl had been harmed or that any of what Mindi claimed had actually happened.
After Mindi started arguing, medical staff sent her for a psychological evaluation and notified local child welfare authorities, according to court records. (As is typical in child welfare cases, the court documents do not include the full names of anybody in the family. Mindi has asked ProPublica to use only her first name, as did other parents in the story.)
That night, authorities took emergency custody of Mindi's daughter, who is referred to in court documents by her initials, Q.A.H. A court-appointed doctor later concluded that Mindi had experienced postpartum psychosis.
But Mindi rebounded after the episode. She began to attend therapy and to see a psychiatrist, who prescribed an antidepressant. She found a job as a shift manager at Kmart and moved into her own apartment. Each morning, she'd call the foster home where her daughter had been placed and she'd read Q.A.H. a book.
In time, her psychiatrist, therapist and even a panel of judges concluded that Mindi should get her daughter back.
"I found the help I needed to be healthy," says Mindi, a wide-eyed woman with a round face and a chatty affect. "I was dealing with some mental battles at the time."
Dr. Stanley Golan, the psychiatrist who treated Mindi, diagnosed her with a mix of post-traumatic stress disorder—likely, a therapist later said, related to abuse—depression and possibly a kind of "mild delusional disorder." Still, the diagnoses, Golan said in court testimony, "do not interfere with her parenting and she is able to adequately care for Q.A.H."
"You can have these diagnoses and be symptom-free," he testified.
Indeed, in September 2011, Mindi, who was in another relationship, gave birth again, to a boy named Jace, whom she's now raising capably on her own. Citing Mindi's pending case over Q.A.H., Kansas authorities took Jace at birth and placed him in foster care. But they soon returned him after finding no evidence that Mindi posed any risk to her son. As a family therapist testified, Mindi has provided a "nurturing, loving environment and had met all of [Jace's] needs."
Yet four years later, after a protracted series of court fights, Mindi does not have her daughter back.
"I couldn't see how they could keep one while I had the other," said Mindi, sitting on the carpet in a living room with her son, surrounded by toy trains and a pile of books. "I don't think I should have to fight for my own child to come home." (Missouri and county child welfare officials declined to discuss the case.)
The question in Mindi's case is not about what authorities did when she plunged into a mental health crisis—nearly everyone involved in the case, including Mindi's own attorneys, agrees it was likely appropriate to remove her baby that day. Instead, the issue is whether a mental health diagnosis itself, in the absence of any harm, should be enough to keep Mindi from ever getting her daughter back.
Under a concept sometimes called "predictive neglect," Missouri and about 30 other states allow courts to terminate a parent's connection to a child if authorities conclude a mother or father has a mental illness that renders them incapable of safely raising the child. Officials usually must present evidence that the illness poses a threat. Most cases involve significant mental illness, not run-of-the-mill depression or anxiety. Yet there need be no evidence of actual harm or neglect, just a conclusion that there is a risk of it.
States typically do not track how many parental termination cases are related to mental illness, or how often parents have lost children based on a diagnosis. New York, one of the few states that does tally such cases, has about 200 parental terminations annually based on mental disability, a category that includes both mental illness and "mental retardation." If there were a similar rate nationally, that would amount to several thousand cases per year. The cases are typically sealed, and there's no way to know how many involve court overreach.
But if it's impossible to know how many parents lose children unnecessarily because of the stigma of mental illness, it's clear that the process for deciding such cases is deeply flawed.
Courts' decisions rest on the recommendations of evaluators who often do not observe parents at home or examine their actual record of parenting. Instead, they rely on psychological tests and case notes.
Incomplete evaluations are an "endemic problem," said Joanne Nicholson, who directed a unit that conducted parenting assessments for Massachusetts child welfare agencies and is one the country's leading researchers on parents with mental illness.
"Parents are often evaluated without a real analysis of their supports, of the life they actually live," said Nicholson, currently a psychiatry professor at Dartmouth College. As a result, "the diagnosis starts to speak louder than real life."
Children can also pay a price when courts overstep. Research shows that forcing children in and out of different homes can leave lasting emotional scars.
The logic of removing kids from parents with serious mental illness is straightforward. Studies have shown that serious mental illness correlates with higher rates of child neglect and abuse. Parents who can't take care of themselves aren't going to be in a position to take care of a child. And delusional thinking can lead to irrational, dangerous behavior.
"You have to put protection first," said Mary Kay O'Malley, who worked for years as a foster care caseworker, is now a professor at the University of Missouri Law School and has dealt with many cases like Mindi's.
When officials fail to intervene to protect children from mentally ill parents, the results can be tragic, irrevocable and front-page news. In one notorious 2008 case, a Long Island, New York, mother drowned her three children after county officials failed to respond to repeated warnings from relatives that she was dangerously unstable.
But O'Malley says she's seen agencies and courts unnecessarily cut off parents from their children. She says that's what happened to Mindi.
Six months after Mindi brought her daughter to the hospital, in February 2010, a parenting counselor reported that Mindi "is ready to be there for [Q.A.H.] emotionally, mentally, and [she] can support Q.A.H."
"The parent changed in this case," said O'Malley, who consulted for Mindi's attorneys for free after learning about the case. "But the court didn't."
The laws permitting termination of parental rights were mostly written in an era when serious mental illness was assumed to disqualify patients from participation in normal life, including parenting. Parents like Mindi may have been institutionalized. In many states, the mentally ill or intellectually disabled could be sterilized. The phrasing in the law has often changed—states have removed words like "feebleminded" and "depravity"—but the same concepts echo.
Indeed, a 2012 presidential commission report found that "parents with psychiatric disabilities experience the most significant discrimination when they attempt to exercise their fundamental right to create and maintain families."
"When [mentally disabled] people were institutionalized, they could not keep their kids. Now they're living on their own, and they're not allowed to keep their kids," said Patrick Yewell, who recently retired from a career as a foster care caseworker, supervisor and administrator in Kentucky's child welfare system.
Rudy, a 42-year-old West Indian-born man in the Bronx, New York, was also denied custody of his daughter. His chance to raise her now rests largely on a psychiatrist's evaluation consisting of two visits and a review of Rudy's records.
Rudy has long struggled with chronic bipolar disorder, for which he has been repeatedly hospitalized. Rudy is also intellectually delayed—an IQ test placed him at the borderline of intellectual disability.
He has no history of violence, abuse or neglect. His only child, J, who is now 3, was removed from the hospital immediately after she was born and placed in foster care. Rudy has been asking to be allowed to raise his daughter with help from his mother and sister.
Authorities first took J because of significant concerns about her mother. J's mother, from whom Rudy had separated before J was born, had already lost three other children to foster care. One of the children removed from J's mother and placed in foster care later died at the hands of a relative of J's mother. And like Rudy, J's mother suffers from mental illness and intellectual delays.
On June 28, 2010, Rudy watched as two Nassau County caseworkers and a cop walked out of the hospital with 4-day-old J. (ProPublica confirmed details of the case through court documents and multiple interviews.)
Rudy, who has closely cut hair and often dresses in baggy sports jerseys, recalls the day his daughter was taken as the saddest of his life. "I asked them why they took my daughter, and they didn't respond," Rudy remembered in a soft stuttering voice with an accent left over from his childhood in St. Croix. "I asked them if I could hold her before they took her, and they wouldn't let me hold her."
Rudy began what would become a weekly ritual: Riding two trains and a bus every Tuesday from the Bronx to Long Island to spend 75 minutes with J in a room in the county child welfare office. Some caseworkers were suspicious of Rudy. "The major concern for the family is both parents' mental health issues," child welfare officials wrote in a court document.
Others described him as a loving, if inexperienced, father. One caseworker note from a visit in September 2011 described Rudy as "gentle and caring," rocking J to sleep on the couch at the county office.â� Two weeks later, a different worker wrote that he was "getting more adept at caring for the child."â� J's mother, meanwhile, stopped showing up for visits and failed to appear in court.
But just over a year after J was first placed in foster care, two Nassau County officials pulled Rudy into a meeting room after a visit with J and told him that the county planned for J to be adopted by her foster family, case documents show.
"They said I have a mental illness, they were trying to see if I would sign away my rights," Rudy said as he sat one recent evening in his Bronx apartment, a pot of rice steaming on the stove. "They expected it to go smoothly, they expected me to surrender my rights."
In New York, counties are required to appoint an attorney for parents at risk of losing their kids, but Rudy hadn't yet been given one. Unsure of what was happening, Rudy went home and called his sister Rubeka, in Tampa, Florida.
"He sounded really upset. Not really angry, but more hurt," said Rubeka, who works as a psychiatric nurse.
Rudy and Rubeka consulted a lawyer and came up with a plan in which Rudy would move in with his sister and mother in Florida so they could raise J together. J's mother, who was also facing the termination of her parental rights, and whose mental health, according to case notes, was deteriorating, agreed to the plan. (J's mother declined to discuss the case with ProPublica, except to say she supported Rudy's effort to get custody.)
But Nassau County officials told Rudy that he should have laid out the plan months earlier and that because so much time had passed, federal child welfare law required them to request termination of his parental rights. The county's records suggest that caseworkers had warned Rudy about this; Rudy said he did not understand he could lose his rights so rapidly and that he waited because he believed J's mother was going to regain custody. Caseworkers also noted that visits between Rudy and J had gotten harder as she grew older—she would often cry inconsolably; she knew her father only as the man she saw on Tuesdays and considered her foster parents her real mother and father.
But these were not the reasons Nassau County authorities listed when they petitioned a county court to sever Rudy and J's legal ties. Instead, the county filed to terminate his rights based on his mental illness. Under New York law, parents can lose their children if courts decide their mental disabilities render them incapable of parenting for the "foreseeable future."
The Nassau County Department of Social Services would not respond to questions from ProPublica about the case or any related policy issues. The county referred ProPublica to the New York State Office of Children and Family Services. That office declined to comment as well and referred us back to Nassau County. The foster parents' attorney and the attorney appointed to represent J also declined to discuss the specifics of the case.
In the summer of 2012, a judge sent Rudy to Dr. Joseph Scroppo, a psychologist and attorney who has held appointments at several New York universities. Scroppo has a contract with Nassau County to perform forensic psychological evaluations and make recommendations about whether parents should keep their children.
Scroppo's evaluation was exhaustive compared with many in other parental rights cases. He met with Rudy alone for nearly 10 hours. Then Scroppo watched Rudy interact with J for 30 minutes. He gave Rudy an IQ test, asked him to define words, stack blocks and read a few sentences.â� He reviewed Rudy's mental health records, including his hospitalizations for manic episodes, and case notes from the child welfare department.
Scroppo concluded that Rudy could not be trusted to raise his daughter.
Rudy's "score indicates that he is probably capable of semi-independent living but would experience significant problems if he were to attempt fully independent living," Scroppo wrote. Citing Rudy's hospitalizations, Scroppo concluded that Rudy "is now, and for the foreseeable future, unable to adequately care for the subject child."
During a hearing in May 2013 in Rudy's continuing parental rights case, Rudy's lawyer, who was appointed to the case when the county filed for termination, grilled Scroppo on his evaluation.
"Your testimony...suggested that [Rudy] would have difficulty functioning fully independently; is that correct?" Rudy's lawyer, Lauren Broderick, asked.
"Yes," Scroppo replied.
"[But] wasn't it your understanding that [Rudy] was cooking his own meals at the time of your evaluation?" Broderick said, looking down at her notes.
"I'm not sure whether he was cooking his meals or not," Scroppo said.
"Did you inquire?" Broderick asked, looking up.
"No, I did not," he said.
"Wasn't it true at the time of your evaluation that [Rudy] was paying his bills?" she went on. "He was responsible for his own hygiene?"
"As far as I knew, yes," Scroppo said.
Broderick continued to push Scroppo to offer evidence from Rudy's life. Instead, Scroppo said, "I based the [categorization of] semi-independent status on the test that I administered to him."
New York's law allows mothers and fathers to present alternative evaluations in court, though funding is not always made available to pay for them. Rudy's sister and brother scraped together several thousand dollars to hire an evaluator for a second opinion.
Dr. Barry Rosenfeld, a psychologist who directs clinical training at Fordham University, did not just administer tests. He spoke to the people in Rudy's life to get a better sense of him—and pieced together a very different picture.
He discovered that in the early 2000s, Rudy shared an apartment near Tampa with Rubeka and their brother Mitchell. Mitchell had a baby boy and Rudy would take care of him. "My son was around 3 or 4. We'd go out for the night, or on the weekends, and Rudy worked less than us, so we'd leave my son with him," Mitchell said recently over the phone from Florida. "I never had any worries about that."
Rosenfeld learned from Norma Gonzalez, a caseworker who'd met regularly with Rudy in the apartment building where he lived when J was born, that "[Rudy] successfully manages his own day-to-day needs and has done so consistently for 3 years."
Rosenfeld noted that Rudy's plan to raise J with his sister indicated not incapacity, but a responsible recognition of his own need for help. "There appears to be no evidence that [Rudy]...is unable to adequately plan for care for his daughter," he wrote.
ProPublica asked a third party to read the two evaluations and to assess the soundness of their methods. Maurice Feldman, a psychologist based at the Centre for Applied Disability Studies at Brock University in Ontario, Canada, researches parenting capacity evaluations. He said that the two evaluators relied on different methods and assumptions.
Scroppo's evaluation didn't take into account the help Rudy planned to have from his family; Rosenfeld's did. "The first evaluator makes the assumption of the scenario that the parent has to parent the child totally independently," Feldman said.
Feldman also said that even though Scroppo's report was relatively thorough, it exhibited a common flaw: It measured mental disability in isolation from its impact on parenting.
"There is a conceptual leap that the first assessor used," Feldman said. He concluded that because Rudy scored "low on cognitive and personality disorder measures, therefore he can't parent," Feldman said. "But that is a fallacy."
"There is nothing in the first evaluator's report, none of the materials cited, that would lead me to believe he can't take care of his daughter."
Scroppo declined to speak with ProPublica about Rudy's case, citing professional obligations to confidentiality. But he did speak in broad terms about mental health evaluations in child protective cases, which make up a significant part of his practice.
"Evaluators are tasked with evaluating the specific parents, not the support system or other persons in their lives," Scroppo explained. "It's driven by the fact that only the parent is going to have ultimate decision making over the child. Although the parent may have —and I think it would matter if they did—a team to help them, it would hinge on their ability to be responsible. The law is for me to look at the parent in and of her self."
Academic studies have found that mental health parenting evaluations often take this self-sufficiency view of parenting. But as Feldman argues, "Nobody raises their child in a vacuum."
The American Psychological Association guidelines actually encourage evaluators to reach out to "extended family members and other individuals when appropriate (e.g., caretakers, grandparents, clinical and social services providers, and teachers)."
Yet often that doesn't happen. A decade ago, DePaul University researchers reviewed 190 evaluations from Chicago's child welfare system. Almost none of the evaluators called on family members or others besides the parents. Often, the evaluators relied on single short interactions with parents or failed to observe them with their children. More recent studies by researchers in New York and at the University of California, Berkeley found similar patterns.
"The tests are already less than perfect at measuring what they were designed to measure—IQ or psychopathology—and they are far less than perfect at measuring parenting," Karen Budd, the DePaul report's lead researcher, told ProPublica.
One reason evaluations come up short is money, said Nicholson, the Dartmouth psychiatry professor who researches parents with mental illness. "Really thorough evaluation is pretty resource-intensive, and nobody wants to do them," Nicholson said. "Nobody can actually afford that. Or they say they can't. Taking a kid away is expensive, too."
Even Scroppo agrees that these cases can be hard calls: "The severity of the mental illness is important in making any determination. And sometimes the line is not clear."
When Rudy is well, he is soft-spoken and thoughtful. "I am really focusing on being a father to my daughter. My dad was a good dad—he worked hard, he took care of us, and I want to do the same thing for my daughter," Rudy said last fall, after returning from work at the grocery store where he stocked shelves.
He also knows he would likely struggle to raise J by himself. Rudy has bouts of numbing depression and high-paced mania. At their worst, Rudy's manic states can flare into delusions. He has believed that he's a businessman and that YouTube videos carry secret messages. The last time he was hospitalized was in the winter of 2013. He and his sister Rubeka say the stress of the case, and the threat of losing his daughter, finally overwhelmed him.
But raising J alone, of course, hasn't been the plan. "If he slipped into an episode, we would know it," Rubeka says. "We would have been there to support her together."
Rudy acknowledges there are no easy answers nor perfect endings. The case has now dragged on for nearly four years. And more hearings are scheduled for June in the Nassau County family court.
J has "been in foster care for a long time," Rudy said. "It will be hard to take her out of foster care. [The Department of Social Services] is saying that she bonded with the foster mom. It's a tough case, you know."
When authorities take a child, a 1997 federal law mandates that they must provide parents with access to the programs and services they need to reunite with their children. If the issue that brought a child into foster care is homelessness, child welfare systems must find parents housing. If it's drugs: treatment. If it's abuse: parenting classes. Parents can be compelled to attend anger management classes, seek counseling or leave an abusive partner.
But the law does not explicitly cover disabilities, mental or physical. And in the absence of a clearly applicable federal standard, at least five states—Alaska, Arizona, California, Kentucky and North Dakota—have listed mental illness as one of a few "aggravating circumstances" that exempt authorities from having to provide help to attempt to piece families back together. Among the handful of other circumstances? Murdering, torturing or sexually abusing a child.
In New York, courts can relieve child welfare departments of having to prove they have made efforts to reunify families if judges deem a mother or father too mentally disabled to parent. That has been Nassau County's position regarding Rudy. "The department is not under any obligation to make reasonable efforts to return the child and to make recommendations [for services] to him," the county's lawyer said in a November 2013 hearing.
The rationale for denying services is often explained this way: If a parent is indeed so mentally ill that they're never going to be able to safely raise a child, why drag that family through an extended legal case and compel taxpayers to make futile expenditures?
But without setting up supports and services, there may be very little way to know whether a parent can raise a child. Rudy was not offered parenting classes or help moving to an apartment where J could join him. No caseworker tried to help Rudy find a program that could support him to raise his daughter, though supportive-parenting programs exist in New York City.
"Nobody ever offered me any help," Rudy says.
In Missouri, where Mindi's case unfolded, the state's obligation to explore support for mentally ill parents has become an issue in the courts.
In 2012, a state appellate court reversed a termination based largely on the testimony of a psychologist who'd administered tests but never actually observed the mother with her child.
"Even a mental condition that renders a parent unable to provide adequate care for a child alone does not provide a basis for termination if the parent has access to additional support because parenting is frequently 'a group effort,' " the appeals court wrote. "It is because of the frequently group nature of modern parenting that [the law] does not allow for the termination of parental rights simply because a parent cannot shoulder the entire burden of raising a child on his or her own."
While ProPublica spoke to dozens of attorneys around the country about questionable cases, few termination cases are appealed and fewer still are reversed—higher courts are typically deferential to trial court decisions. Missouri appeals courts and the state's Supreme Court have overturned at least seven other mental-health-based terminations since 2000. We found another seven cases since 2000 in which New York appellate courts overturned mental disability terminations.
In the last decade, states including Idaho, Utah and Vermont have added language to their child welfare statutes to protect parents with disabilities, including psychiatric disabilities. "A court may not remove a child from the parent's or guardian's custody on the basis of...mental illness," the Utah law reads.
But mental health advocates say progress is too slow. They say that even in states where mental illness is not listed explicitly as a reason for terminating parental rights, parents still face bias and aren't getting the help they need.
"People have focused on the language of disability or mental illness in the laws, and that is important," said Jennifer Mathis, deputy legal director of the Bazelon Center, a mental health advocacy groups. "But you also need to provide supports."
In 2011, two years after Mindi's child was removed, Missouri's legislature adjusted the child welfare laws to recognize the rights of disabled parents. The change came after news broke of a blind couple whose baby had been removed over concerns that their disabilities impaired their ability to raise a child.
The measure affirmed that nothing in the state's laws should "be construed to permit discrimination on the basis of disability or disease." Children cannot be removed, nor can parental rights be terminated, the bill maintained, "without a specific showing that there is a causal relation between the disability or disease and harm to the child."
As it was originally introduced, the Missouri legislation noted that in making child removal and parental termination decisions, the state "shall consider the availability and use of accommodations for the disability or disease, including assistive technology and support services." That language—the sort that advocates for parents and for people with psychiatric diagnoses say is needed to stop unnecessary family separations—was removed from the final legislation.
In Mindi's case, her daughter's foster parents and the state of Missouri asked the judge in 2011 to terminate Mindi's parental rights and for Q.A.H. to be adopted. The reason her rights should be terminated? Citing state law, lawyers for Q.A.H.'s foster family wrote that Mindi has "a mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed."
The petition rested largely on reports of the event three years earlier, when, after the delusion about her daughter's rape, Mindi brought her daughter to the hospital.
In 2012, a Missouri trial court granted the petition to terminate Mindi's parental rights, formally severing her connection to Q.A.H. Mindi was "unable to knowingly provide [Q.A.H.] the necessary care, custody, and control" because, the judge wrote, she "has delusions that then become her reality."
Earlier in the case, Mindi had regained custody of Q.A.H. after eight months of separation only to lose it again after refusing to allow visits from Q.A.H.'s father, who Mindi says was abusive. Such lack of cooperation is not legally sufficient to permanently separate children from their parents, but the judge who terminated Mindi's parental rights chalked up her claim of abuse to ongoing delusions—though no evidence was presented on this, one way or the other. Q.A.H. was placed back in foster care, this time with a new couple.
The judge also said in his opinion that Mindi had made strange faces while sitting in court, an "affect," the judge wrote, which "is quite unusual in termination of parental rights proceeding, but is consistent with mental health diagnosis given by [the court-appointed psychiatrist]."
Mindi's lawyers and other attorneys who represent parents like her say the judge's reaction is common: Actions and statements that might pass without notice in people without a mental illness are pathologized in people with a diagnoses. "People who have those records at the back of their mind are looking for something to support their theory that she's not stable," said Sandra Wirtel, Mindi's court-appointed attorney.
Mindi and her lawyers appealed the 2012 ruling, and the following year a Missouri appellate court sided with her. The trial court decision, a three-judge panel ruled, "utterly fails to establish that [Q.A.H.] would be harmed by a continued relationship with Mother."
The appellate judges added that the judge's observation of Mindi's facial expressions "does not constitute reliable and substantial evidence on the critical question of Mother's present mental condition."
Mindi began preparing for Q.A.H. to return, setting up a bedroom with a pink bedspread. They had not seen each other for nearly a year, and to rebuild their relationship, Mindi and Q.A.H. were allowed to begin visits. Her daughter was bigger, more talkative, her dark blond hair now in long curls. At first, Q.A.H. was shy, feeling out her relationship with this woman she'd been separated from. But then she asked her mother to play a game Mindi had made up when Q.A.H. was younger. "She remembered that," Mindi said.
Mindi thought her daughter would be home for Christmas. But in late 2013, Mindi's lawyer called her to tell her the case was not over. Q.A.H.'s foster parents, joined by the state, had appealed the case to the Missouri Supreme Court. Visits were halted again. The judges heard arguments in the case two months ago.
When she's with her son, Mindi can, for a moment, forget that for the last three years her life has been consumed by the fight for her daughter. Mindi enrolled in college again. She spends a lot of time at her Baptist church—Wednesday night Bible study and Sunday services. She now lives in the home of a family friend who is mostly away—Mindi's father died when she was young and she's estranged from her mother.
Late last year, she started to meet with the foster parents for monthly mediation sessions. Q.A.H. had lived with them for more than two years now.
To her attorneys, Mindi's case still seemed like a sure win. In 2007, the Missouri Supreme Court restored the parental rights of a young mother who'd been diagnosed with bipolar disorder.
Judge Richard Teitelman sits on the Supreme Court of Missouri. Speaking broadly about such cases, he told ProPublica, "given the number of people in this world who are bipolar, or have some mental illness and who raise children very effectively,it would not seem to me that it should be a status thing—that anyone can say, if you're mentally ill you can't be a parent, you can't have a child. That does not seem to comport with today's reality."
In the early afternoon of March 25, Mindi received a phone message from the lawyer appointed to represent her in her parental rights case. The news was what she feared. "I just lost my daughter," Mindi wrote in a message to ProPublica.
The Missouri Supreme Court ruled, 6-to-1, that the lower court should be granted broad discretion in making decisions about the facts of a parental termination case. Though the judges noted that the state still had an obligation to prove that a parent's mental condition poses a risk to the child, they wrote that since the trial court had believed Mindi was a danger, the Supreme Court, which did not hear testimony from witnesses, was in no position to disagree.
Judge Teitelman issued a short lone dissent. "The evidence in this case...fails to demonstrate clearly that the Mother is currently unable to adequately care for the child and that she will be unlikely to do so in the future," he wrote, adding that the court's decision had been "simply speculative."
In early May, Q.A.H.'s adoption went through. Mindi has no contact with her daughter.
This project was supported by the Reporting Award at NYU's Arthur L. Carter Journalism Institute. Research assistance was provided by Lecia Bushak and Amy Zhang.
The Senate has finally closed its four-month long ideological bludgeoning match over unemployment insurance, voting 60-40 yesterday to move forward with a bill extending the benefit through November for people who've been jobless for more than six months. After a final Senate vote, the bill will head to the House, where it will pass easily. So the demoralizing back and forth will come to an end--at least for the next four and half months.
On the surface, the debate has provided ground for an ongoing fight over the deficit. Republicans and Nebraska Democrat Ben Nelson insist that unemployment insurance extensions should not add to the federal deficit and should be paid for with budget offsets. But lurking behind the deficit discussion has been another, arguably deeper ideological debate about the social safety net itself. Over the last several months, Republicans have revived an idea that had faded from the public discussion during the boom years: The absurd notion that safety net programs like unemployment insurance create disincentives to work.
As this debate has unfolded, there's been typically little acknowledgement of just how much race informs it. With unemployment rates as racially skewed as they are--blacks and Latinos, young people of color and single moms are all way more likely to be without a job--the benefits-make-them-lazy assertion is weighted by familiar, if silent tropes about people of color and work.
The suggestion that unemployment insurance is the reason people aren't working may seem absurd in a time of almost 10 percent joblessness, rising homelessness and record levels of participation in the food stamp program. The average unemployed worker has been without a job for 34 weeks. But throughout congressional debate over the past four months and on the airwaves and editorial pages, conservatives have repeated the theme over and over.
In March, when the hoopla was just getting under way, Sen. Jon Kyl of Arizona, the Republican whip, argued on the Senate floor that a jobless benefits extension would be counterproductive "because people are being paid even though they're not working . . . if anything, continuing to pay people unemployment compensation is a disincentive for them to seek new work."
Sharron Angle, the Republican running against Senate Majority Leader Harry Reid, said in an interview a few weeks ago that she would have voted against the benefit extension:
because the truth about it is that they keep extending these unemployment benefits to the point where people are afraid to go out and get a job because the job doesn't pay as much as the unemployment benefit does. And what we really need to do is put people back to work.
It's plainly untrue that most jobs would pay less than the paltry, if essential benefit--an average of just $293 weekly. No matter. The Wall Street Journal nonetheless published an op-ed by Arthur Laffer arguing that extending the benefit "will make being unemployed either more attractive or less unattractive, and thereby lead to higher unemployment."
But of course there's a serious chicken and egg problem here. As Paul Waldman writes over at Tapped, "saying that increasing benefits causes unemployment is like saying that the presence of oil-catching booms causes oil spills, or that rain is caused by people carrying umbrellas."
Even if unemployment insurance did somehow discourage people to go look for jobs, as Paul Krugman notes that can't be an issue now, since there just aren't enough jobs. There are roughly five job seekers for every opening, according to an Economic Policy Institute analysis of Labor Department data. And as Krugman writes, "One main reason there aren't enough jobs right now is weak consumer demand. Helping the unemployed, by putting money in the pockets of people who badly need it, helps support consumer spending."
In sum, the benefits of unemployment insurance far outweigh any potential disincentive to work. That's plain, if we're talking about facts rather than racially loaded ideology.
Two and a half million jobless Americans have been without assistance since they were cut off over a month ago and a failure to pass the extension now would have plunged another 1.2 million a month into economic no man's land. (The bill will retroactively provide benefits to those who were cut off last month.) As my colleagues and I explained in the Applied Research Center report Race and Recession--which we updated on Colorlines earlier this month--people of color are feeling the recession's worst results. These are the communities waiting most anxiously for this bill. (Scroll down for more.)
Moreover, the Republicans' use of the deficit as the key objection to extending unemployment insurance is entirely a straw man. Yes, the deficit is a serious longterm concern. But Senate Republicans are hard pressed to get us to believe that their complaints are a genuine worry rather a November elections strategy. As Democrats have hammered home, the very Republicans who are yelling about the deficit now helped push through the economic policies that created it in the Bush era.
President Obama said as much this week when he called Republicans a "partisan minority." "The he same people who didn't have any problems spending hundreds of millions of dollars on tax breaks for the wealthiest Americans are now saying we shouldn't offer relief to middle class Americans....who really need help," he lectured.
When Bush entered office the federal books were in the black. By the time he left, the country had plunged into trillions of dollars of debt. Apparently Republicans only object to the deficit when there are politics or other ideological commitments at stake. And one of those commitments is the idea that helping the unemployed makes them lazy. It's a fact-challenged argument that's drenched in old ideas about lazy workers, who, over and over again, are cast as Black and brown.
The Supreme Court today granted immigrants facing detention new rights and protections. The ruling in Padilla v. Kentucky requires defense attorneys to accurately advise their non-citizen clients of the potential immigration consequences of pleading guilty to a crime.
Under current law, deportation is the mandatory result of many criminal convictions, including minor ones like marijuana possession or shoplifting. Unknowingly, many immigrants, even green card holders, initiate their own deportation when they plead guilty in an attempt to secure a minimum punishment. Immigration and Customs Enforcement announced it is well on it’s way to deporting a record 150,000 people because of a conviction.
As things stand, American law does not consider deportation to be a punishment, but rather a civil sanction. As a result, the law does not consider deporting a person after they serve a criminal sentence to be double jeopardy.
While today's decision will do nothing to challenge this—the court is far too conservative for a ruling of that kind—“the decision,” says Bill Hing, an immigration law professor at UC Davis, “may have a very big impact.”
That’s because most criminal convictions come as the result of a plea bargain. According to Hing, “eighty to 90 percent of criminal cases result in a plea bargain and that means that it’s probably the case that 80 to 90 percent of people who are deported because of crimes probably also resulted from a plea bargain.” Now, all immigrants who enter a plea agreement must be aware of the full range of possible consequences.
As of today, says Hing, “what an immigration lawyer will do when someone comes in the door, is ask about how the plea was arrived at.”
The Supreme Court decision extends the sixth amendment right to counsel to immigrants facing criminal charges. "The severity of deportation - the equivalent of banishment or exile,” writes Justice John Stevens in the court’s opinion, “only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.”
Michelle Fei, Co-Director of the Immigrant Defense Project, explains, "even though most immigrants' primary concern is their ability to stay in the U.S., they often plead guilty, unaware that the result would be permanent exile from their families and communities." The Padilla decision will change this.
“What the court got right today is that deportation is such a dire consequence that more protections are really necessary,” says Fei.
