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Editor's note: This is a follow-up to a six-part series of in-depth reports by columnist Issac J. Bailey in which he examined a Conway father's two-year struggle to bring his daughter home from a New York foster home.
This week, Johnny Smith, his wife and a few other family members will drive 17 hours to Warren County, N.Y., for a hearing before a judge who will decide whether his more than two-year fight to bring his daughter home to Horry County will end.
She has been in a New York foster home since July 2008 after being battered, bruised and assaulted by the teenage sons of her mother's boyfriend, according to police and medical reports.
On Wednesday, Smith will try to clear another in a series of hurdles to reclaim the daughter who lived safely in his home for the first three years of her life, a hurdle that would have not existed except for the drawn-out implementation of the federal Interstate Compact on the Placement of Children law by officials in New York and South Carolina.
For the past two years, Smith has been exhausting his modest savings and retirement accounts, paying lawyers and hounding officials with S.C. Department of Social Services for help.
For the past two years, Warren County DSS argued that it could not return her to Conway because S.C. DSS said the Smith home was unsuitable and "financially fragile" - a decision the Smiths could not challenge because South Carolina does not have an appeals process for cases that fall under the federal interstate rule, meaning no state judge could overturn the decision of the case worker.
After two denials, S.C. DSS recently agreed that the Smith home is now suitable for his daughter's return.
But even though the rationale upon which the Warren County Department of Social Services based its original decision no longer applies, the department plans to use another one: It will argue that Smith's daughter should remain in custody because "all of her medical, educational, mental health and emotional needs are being met," according to court documents.
And it is asking that Smith pay for more than $30,000 in medical expenses, Smith said.
His daughter now effectively has two families, both of whom have reason to be deeply, emotionally tied to her.
She has spent two years and three months with her New York foster family, which has had the primary duty to nurse her back to health, to see her wounds heal, to cradle her during nightmares, to take her to doctor and therapist appointments, and to school and activities a 5-year-old girl trying to overcome horrific abuse needs.
Smith's daughter has been calling her foster parents "mommy" and "daddy." Shortly into her stay in foster care, she began calling Smith "Johnny."
"The case worker said that was to show that they have a stable environment," Smith said. "Now I'm being called 'daddy Johnny.' For a 5-year-old to call you by your first name and not daddy is very heart-breaking, makes me feel like the three years she was here with me was pushed aside for someone else, like I'm being made to be forgotten."
A need for change
Attempts to change the laws and procedures that exacerbated Smith's plight are being considered. The S.C. Department of Social Services is reviewing options for changing the process for those subjected to the ICPC.
National ICPC reformers and experts are continuing a push for changes on the federal level, which may include taking more fully into account the constitutional rights of biological parents, commissioning a comprehensive look at the law's impact, and an appeals process for the law, which was designed to provide out-of-state social services agencies with vital information about households into which a child might be sent from foster care.
The S.C. General Assembly may weigh in when it gets back in session early next year.
"[Smith's] story ... highlighted a problem which continued to worsen due to the flaws in the law and failures of the system," said state Rep. Tracy Edge, who helps determine DSS and other health care funding. "With the legislature being out of session we have not had the opportunity to codify any changes or act upon them. ... I am told that [DSS] is trying to come up with new protocols on dealing with these issues in the future where the procedure of another state creates issues in how cases are normally dealt with."
Those changes are about broader issues concerning the ICPC, which has affected parents throughout the country, according to analysts.
For Smith and his daughter, this week is personal.
Her abuse began after Smith and the girl's mother, Helen Prince, ended their nine-year live-in relationship and the child moved with Prince to the South Carolina home she shared with her boyfriend. It continued when they moved to New York.
And although Smith sought help from S.C. investigators when his daughter was still living in South Carolina and he first suspected she was being harmed, authorities did not step in until the then-3-year-old was dressed in a shirt and diaper crossing busy Route 9 in Queensbury, N.Y.
Her mother served less than a year in jail for her role in the abuse. The boys, then 12 and 15, didn't serve time because their father wasn't present during an interrogation when they gave details of what happened.
Months after Prince was released, she was charged in similar crimes with another family in Brunswick County, N.C. Those charges were dropped after a key witness failed to show up in court. She, too, has been trying to regain custody of her daughter, though her paperwork has not been completed. She has declined to be interviewed.
The Smiths have filed suit against Warren County for custody and are asking for their lawyer's fees and other costs be paid for, though they primarily want their daughter home, they said.
"I don't know what to do no more," he said. "All they do is hide behind red tape."
Best interest
On Wednesday, it won't be about red tape. It won't be about Smith being pushed further into financial instability because of the length of the case. It won't be about the months it took to send a request for a home study from Warren County to Horry County and back again. It will be about what constitutes the ill-defined "best interest of the child."
Is it in her best interest to keep her in foster care longer or to let the foster parents adopt her, which would mean legally stripping Smith of his parental rights?
Or is it better to return to her father, his new wife, her siblings and extended family on farmland in rural Horry County?
If she is returned, "an Horry DSS worker will be visiting the Smith home," said Virginia Williamson, DSS spokeswoman. "Part of her work will be assistance with accessing services locally and assessing the need for other services. Mr. Smith would need to tell her about any problems so she can help. New York will retain responsibility for helping Mr. Smith. If New York makes this placement, everyone will work together so it can be successful."
Smith says he understands the dilemma, that his daughter "sees it as having two families."
He has already arranged a therapist and doctor and school, all of whom said they can provide the same level of services his daughter has been receiving in Warren County.
He appreciates how the foster family has treated his daughter and believes they are good people. He wants them to remain a part of her life, through phone calls and visits and other ways. But he wants his daughter home.
"The last time we visited her, she asked when she could come home," he said. "She said, 'Where's my brothers and sisters? Why can't I go home with you?' I can answer it, but it don't make sense to her. I just want to try the best I can because my daddy never tried for me."
Richard Wexler, executive director of the National Coalition for Child Protection Reform, says the legal case for returning custody to the Smiths is clear.
"If I kidnap your child at birth, flee to Mexico, take really good care of her, 'meet all her needs,' and then come back two years later - can I keep her? Of course not," he said. "So why is the standard different when the 'kidnapping' is done under color of the law by a government agency? If Johnny Smith were middle class, this wouldn't even be an issue. The child would have been returned very quickly."
Wexler recommends the judge give Smith custody while allowing the foster parents to remain involved in her life.
"Ideally, the Warren County court will recognize that, ideally Johnny Smith will allow the foster parents to remain a part of his daughter's life," he said. "And ideally South Carolina will pick up the tab to let the foster parents come and visit the child in South Carolina. Ideally. But, of course, you don't often get an ideal result in child welfare."
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