West Virginia, “Almost Heaven” in so many ways, is struggling to contain one blight upon its land: The growing number of cases involving children who have been abused and/or neglected.
The Mountain State had 5,235 of these cases in its circuit courts in 2020. There were 5,975 in 2019; 5,659 in 2018, and 5,770 in 2017. All of those numbers were well above the 3,391 in 2011 or 3,561 in 2012.
To put that into perspective, West Virginia had about 65 abuse-and-neglect cases per county 10 years ago; that’s up to about 95 per county now — an increase of 30 a year per county. And many of these cases involve more than one child.
Veteran Harrison County Chief Judge Thomas A. Bedell has said abuse-and-neglect cases compose 80-85% of the docket in his circuit, and there’s no let-up in sight.
And to top it off, the rate of times parents and their children are reunited in these cases is low.
Patricia “Trish” Dettori, an assistant prosecutor in Harrison County, has been representing the Department of Health and Human Resources in these cases throughout this century.
Her representation of the DHHR is one different from felony or misdemeanor cases, where the prosecutor’s goal is to represent justice, not the alleged victims.
“The DHHR can tell me, ‘yes, we can agree to this,’ or ‘no, that we can’t agree to that,’” Dettori said. “So I have a set client, which makes me different.
“We represent them in all the child abuse-and-neglect matters. We file the petition. And really the burden of proof is on us at the adjudications. There are different phases for us. There’s the preliminary hearing if there’s been an emergency taking of the child,” Dettori said. “If there’s not been an emergency taking of the child, then we go straight to adjudication. Adjudication is the trial portion of an abuse-and-neglect case; it’s the equivalent of guilt or innocence.
“And then after the adjudication phase, there’s the motions for improvement period or disposition. And disposition is where the court decides what to do with the parents’ parental rights. … The one thing about abuse and neglect that we’re all mandated to do — and I think it’s more difficult from the perspective of the attorney for the parent — we’re all mandated by law to look after the best interests of the child,” Dettori said.
So what can trigger an abuse-and-neglect proceeding? Physical and/or sexual abuse, drug abuse, extreme cases of unsanitary living conditions, educational neglect and medical neglect are the among common causes.
What if a child dies due to abuse and/or neglect?
“We still would get involved from the abuse-and-neglect aspect because of siblings or unborn children who could come into play,” Dettori said.
The child’s representation
Bridgeport attorney Jenna Robey serves as a guardian ad litem in abuse-and-neglect cases — it’s up to her to “guard” the interests of the children. It requires extra training for attorneys to take part in abuse-and-neglect proceedings, and it’s even more training on top of that to be a guardian ad litem, Robey said.
“All of the attorneys have to keep the best interest of the child in play, no matter who they represent. But the attorney for the child works closely with DHHR and the prosecutor, as well as (Court Appointed Special Advocates) when they’re involved, to make sure that the child has all of its needs met,” Robey said. “Because depending on what case it is or what kind of neglect you’re talking about … you may be talking about not having clothes, not having gone to school, not having the correct medical care. So every case varies depending on the circumstances. But the guardian litem is the one who works the closest with the children,” Robey said.
Services include therapy, in-state if it’s available, but out-of-state if that’s the only place to get it, Robey said.
Plus, Court Appointed Special Advocates do a great job providing items such as “yarn for kids to knit, to try to help with their anxiety … so we really do have a team effort,” Robey said.
Clarksburg attorney Jason Glass represents the respondents, which in abuse-and-neglect cases are the parents.
Most of the time, that involves “making sure they have the services in place to correct what led to the case being filed,” Glass said.
“All they have to do is ask for it. Obviously we can’t do the services for them, but we can put them there. You can lead the horse to water but not make it drink, sometimes I guess. Services, you’re looking at individual counseling, parenting classes, adult life skills training, any kind of drug therapy that they need, drug testing,” Glass said.
“Really anything that we can do to help them out at all. Obviously, nobody wants to be in this process, but once you’re in it, all these services are free. So, it is the one time that most of these people have to get the help that they need at no cost to them so they can correct what happened to lead them here,” Glass said.
Just like the caseload is increasing around the state, it’s also going up in Harrison County, which is on pace to have between 275 and 300 cases filed. That would be the most ever, Dettori said.
Added Glass: “There’s a ton of abuse and neglect right now. I mean it used to be we’d struggle to get to 100 cases, and now we’re pushing 300 this year.”
Glass and Dettori see two triggers. One of them is familiar: Substance abuse. The other is new: The COVID-19 lockdown.
“People were more contained, and children are in the home. There’s no respite for the parent or the child. And that’s caused an increase. … We’ve had more physical abuse this year than what we’ve typically had,” Dettori said. She added that the numbers might be even higher since abuse and neglect referrals often come from school officials, and kids weren’t in schools much of the time during 2020.
“And I think that educationally, I don’t know that children’s needs are being met, because they’ve been in the home being schooled, or not schooled, as the case may be. And I think that’s why we’re seeing more educational neglect right now, too,” Dettori said.
Dettori underscores that “an abuse and neglect is just not a given. We have to meet our burden of proof. And people work really hard to work as a team to try to get the parents to acknowledge their issues and address their issues. And like Jason said, you can’t always make them do it, but they’re given every opportunity. This is their last best chance to really work to solve the issues if they want to. (If they don’t), then they very well may lose the rights to their children …”
The system comes with different options. Parents can participate as required and get back their rights through an improvement period. But if they aren’t getting the job done, the parents’ rights to their children can be suspended, Dettori said. Parents can come back later, “but it’s their burden to show that they’ve changed,” Dettori said, although this modification isn’t available if kids are age 5 and under.
The other option is termination of parental rights, which comes with finality, although some parents will receive a grant of post-termination contact. That would only be the case where there had been a prior bond with the parent, Dettori added. And this kind of contact can come with strict terms and conditions, such as supervision through a special service at the cost of the terminated parent(s). Drug screening prior to any form of contact also could be required.
Different places, different outcomes
Robey, Dettori and Glass believe there’s a “team effort” in Harrison County. That isn’t present everywhere, Robey says.
“I think in some counties, the respondents’ attorneys take a more adversarial role, which sometimes is warranted, but most of the time is not. You really have to try to work together, make everything, all the parts fit,” Robey said.
“And I think we’re very lucky in the DHHR workers that we have, honestly. Some counties do not have such dedicated workers that we have, and it shows. Services are not set up, services are not readily available. Sometimes walking into to a preliminary hearing, you might have parents that are already drug screening and already have parent classes in place. That just doesn’t happen everywhere,” Robey said.
Adds Dettori: “We’ve never had a situation where you’ve had a CPS worker or someone come in and say, ‘Well, you know, we have a backlog,’ and that being an excuse for not filing. … The workers here don’t do that. They file their petitions, and they file them pretty timely. They definitely deserve that credit.”
Glass and Dettori believe more services are needed to help the system become more effective. That includes more long-term drug treatment options for parents.
“We need to make sure that there are just more services available to the parents, the respondents,” Glass said. “The drug treatment has gotten better over the last couple of years but it still could go further. We need more service providers out there, because as our caseload goes up, so does theirs. And some of these service providers are jamming their week totally full and doing stuff on the weekends as well. I just think that more of the supportive services need to be in place, for sure, to help these people — to help the ones that want to get the help.”
Dettori also said there should be more services for low-functioning parents who “want to care for the child, but simply can’t care for their child.”
The attorneys believe there could be more opportunities for job training and housing help.
Dettori also said lawmakers could help matters by changing state code. The way the law previously was written, parents could be found to be “neglectful.” Now, the code has been changed so that all parents — whether they’ve abused or neglected a child — are categorized as abusing parents, according to Dettori.
“Part of the law is that if you don’t acknowledge what you’ve done wrong, you can’t improve, and the court’s not supposed to give you an improvement period,” Dettori said.
“A lot of parents say, ‘I can’t acknowledge that I abused my child. I didn’t abuse my child.’ And some of our judges go with still doing the neglect and letting them do neglect. And some (judges) say, ‘No, they have to say that they abused the child based upon neglect.’ That’s a hard thing,” Dettori said.
Robey believes courts could benefit from having more discretion on how long parents have to reach goals.
“We have very specific timeframes, and we do that because a lot of these children are young and they need permanency. But one of the things that I’ve been seeing more and more as I practice is that sometimes you need just a little bit more time. I mean we’re dealing with drug addiction that has gone on, you know, for 20, 30 years and we’re expecting these parents to fix it in six or nine months. And that’s just not realistic,” Robey said.
“Sometimes it’s coming from the kids. You’re seeing more and more kids who are older and understand what’s going on, and need more time to acclimate back into the home with the parents. And you have to do that at their speed. You can’t force that issue. But if we’re working on timeframes you also can’t terminate a parent’s rights that [is] doing everything they’re supposed to, and here you’re just waiting on this kid to get where they need to be emotionally,” Robey said.
Robey, Dettori and Glass believe that in Harrison County, the rate of times parents are reunited with children through the abuse-and-neglect process is less than 20%.
“It’s not acceptable. … I saw something a few months ago. The national average of children in foster care is 7%, [while the average in] West Virginia is 21 or 24%. We’re over three times the national average of children in foster care. And there’s not enough foster homes or relative placements. We now have what’s called ‘fictive kin placements,’ which is basically if you have any kind of a relationship to the child, you can be considered for placement, and we’re flooding those systems at this point in time,” Dettori said.
“I’m not sure that it’s something that you can legislate in a fix, honestly. I think the drug issue has gotten to the point where a lot of people just don’t care. … We’re sitting here as parents ourselves. And I’ve heard Judge Bedell say he would crawl through fire and glass to do whatever he needs to do to get his kids back.
“And you know that’s what we all believe as well. But some of these people, I mean, I hate to say, they just don’t care. They choose the drugs over everything else,” Glass said.
Robey couches the thought that parents don’t care, at least not the ones that make an effort to participate.
“Usually the judges are pretty good about saying it: It’s not ever about lack of love. I mean it’s very clear that these parents love the kids, it’s very clear that these kids love parents,” Robey said. “How many times I’ve agreed to an improvement period that I didn’t really want to, that I didn’t think would work, because the kids said, you know, ‘Miss Jenna, I love my mom,’ or, you know, ‘I want to see my dad.’ And so I don’t think it’s about a lack of love or lack of want-to, it’s just the drugs are so bad …”
Dettori added that some parents might lose incentive if their child or children are with a family member. They’ll say, “Grandma will let me see little Susie, so it’s OK,” Dettori said. She added that “it’s definitely better for the child to have that placement with a relative, and that’s what we want. But sometimes it may take a little bit of the motivation away for the parent.”
In the end, it’s always going to be up to the parents to make their case. And that will chart the course for the child for years to come, maybe a lifetime.
In sessions with all parties involved, “we all meet and kind of discuss where we are in the case, what each of our positions are in a case. And it gives a parent, a chance to say, ‘Listen, I know you don’t think I can do this, but I can do this.’ And that’s where they can kind of convince us to agree to an improvement period that we might not otherwise be so willing to agree to, when you get that feel for a parent,” Dettori said. “And I tend to lean toward agreeing to an improvement period because I think the child deserves it.
“I think it’s better for a parent to live or die by their own sword, and the child to realize that their parents had that chance, versus the system was against them. I mean, we’re here to try to help them. Sometimes you can’t agree to an improvement period or you shouldn’t read improvement period and we don’t. But if it’s at all, a judgment call, we typically always agree, and let them try.”
