- Brian Chilson
- PUSHED AWAY: Kimberlee Herring's three grandchildren were given up for adoption despite protests from the family — and then were physically abused in their new home.
Last February, as Kimberlee Herring, a 43-year-old grandmother in Cabot, was browsing online, something caught her eye: a mug shot of Jacqueline Ferguson, a former special needs teacher, foster parent and the woman who'd adopted Kimberlee's three grandchildren — two boys and a girl, aged 3, 4 and 5 — a year and a half before. When family members dug deeper, they found court records: Ferguson was being prosecuted for domestic battery of one of the adopted children.
The family hadn't even known the children had been removed from Ferguson's Cabot home, where all three had been adopted in 2013. But an arrest affidavit from April 2014 detailed the allegations made by other children in the family. Ferguson, who had eight children in her home at the time, including multiple foster children, was accused in the affidavit of hitting Kimberlee's grandsons with a vacuum cleaner attachment, spraying the children in the face with water forceful enough to blacken their eyes and shoving the boys to the floor at night in an effort to prevent them from wetting the bed. The case had come to police attention after two of the children's older foster and adoptive sisters surreptitiously took photos of one of the boy's injuries: numerous red welts across his legs, arms and back that a forensic doctor at Arkansas Children's Hospital later identified as consistent with the vacuum cleaner wand. Ferguson claimed the marks were a form of hives.
In February, Ferguson was sentenced to six years in prison for second-degree domestic battery of one of the younger boys, and this summer her and her husband's parental rights for all three children were terminated. (A source says the foster children in her care were placed with other foster families, and that the adoptive children were sent to live with a relative of the Fergusons.) Ferguson's attorney, Jonathan Streit, says she denies all the allegations and is currently appealing both the criminal conviction and the termination of her parental rights.
For Kimberlee and a sprawling network of her family and friends, the abuse findings were difficult enough to take. What made it worse was later learning that there had been suspicions of abuse before the Fergusons' adoption was ever approved. After Jacqueline Ferguson's trial, Kimberlee's 22-year-old daughter, Karisa Hardy, was contacted by Britney Kelley, who had cared for the three children at a daycare center in Cabot while they were still being fostered. Kelley said that she and another colleague reported Ferguson to the child-abuse hotline after seeing the two boys repeatedly come in with bruises, marks and scratches (and once a black eye) over a period of months. (Confidentiality laws prevent the state's Division of Children and Family Services — the child welfare arm of the Arkansas Department of Human Services — from commenting on specific cases, or even confirming whether or not there was an investigation.) Worst, the family thought the children's placement with the Fergusons had always been unnecessary.
As with most cases handled by DCFS, the story was complicated. The children's parents were Kayla McPherson (Kimberlee's daughter and Karisa's sister) and Billy Ray Turner, each of whom struggled with serious mental health conditions, including schizophrenia and bipolar disorder, which led to further difficulties with money, employment and stable housing. Billy Ray also had a learning disability and had dropped out of school in the seventh grade. They'd grown up in a poor community punctuated by violence — Kayla was present as a teenager when a friend of hers was murdered — and Billy Ray got in trouble with the law, serving time for crimes like burglary and theft by receiving. They had their three children in rapid succession: one every year for three years, starting when Kayla was 20 years old and Billy Ray 26. They loved the children intensely and were never physically abusive, but they were also never stable.
Relatives tried to help, volunteering to take care of the children as the couple split up and got back together, or during their frequent moves from house to house. In a community where many people are intimately familiar with DCFS processes, Billy Ray's family prided itself that, among its dozens of grandchildren and great-grandchildren, none had ever been permanently removed. Family friends stepped in too, sometimes caring for one or more of the children for days, or even weeks, at a time.
"We were aware that they had mental disorders, and they reached out to all of us every time they needed help," said Amber Butera-Turner, one of Billy Ray's six older sisters. "If Kim couldn't provide, they were calling me; if I couldn't, they were calling my sister."
After the birth of their youngest son in 2010, Kayla struggled with severe postpartum depression and suffered what family members described as a mental break. An altercation at a relative's home, during which Kayla was tasered by police while holding her 3-week-old son, led to initial DCFS interest in the family. A year later, when Kayla and Billy Ray left the baby with a family friend for at least several days, the friend called in a report of child abandonment, and in 2011 DCFS took custody of all three children, citing inadequate shelter. After stints in different foster homes, it seems two of the children came to live in the Fergusons' home in 2011, and the third joined them in 2012.
The agency opened a case plan for the young couple. Kayla would have to address her mental health treatment and show proof of income and stable housing; Billy Ray said DCFS told him that if he turned himself in on an open warrant for failing to appear for a probation revocation hearing, the agency would help him. He did so, and went to jail.
After the children were placed in foster care, family members contacted DCFS to ask whether they could instead live with them. But from the start, the agency seemed to regard both sides of the family with suspicion. Kimberlee was among the few ever approved for visitation, but she said that when she showed up for the first visit — confident that the children would be coming home that day, if not to Kayla, at least to her — the DCFS caseworker supervising their visit treated her like "scum." When Kimberlee asked why one of the children's hair had been cut, she said the DCFS worker told her the children had been filthy and infested with lice. "They made me feel so little, you know?" she said. "Like we were beneath her, and we didn't take care of the kids."
Over the course of the year that followed, Kayla struggled to meet the objectives of her case plan. Sometimes she didn't take her medication; sometimes she missed visitation; she came unprepared to court. Her family, however, didn't think she was given a fair chance; Kayla wasn't informed of the support services available to her, they said, nor were her mental health issues treated with enough consideration. They also felt DCFS was holding her to impossible and changing standards. When Kayla found an adequate place to live with family, DCFS told her she had to live on her own; when Kimberlee offered to sign her house over to Kayla, DCFS responded that Kayla had to pay for her housing herself; when Kayla rented a trailer, she was told that it wasn't big enough; and when she moved to a bigger trailer, the fact that she'd moved so many times within several months was cited as proof of her instability. In the end, in July 2012, Kayla's parental rights were terminated, and the case plan for the children was changed to adoption.
- Brian Chilson
- BILLY RAY TURNER: His brother and other relatives offered to take custody of Billy Ray's three kids, but they were adopted into a home that turned out to be abusive.
Throughout parts of that year, Billy Ray was incarcerated and simply left out of most proceedings. In September 2012, he was brought to court for his own termination hearing. There, Billy Ray claimed, a DHS lawyer told him that if he voluntarily relinquished his rights, custody would be given to an older brother, William Turner, a 37-year-old home health aide and nurse in Cabot who had contacted DCFS about taking the children.
And so, Billy Ray said, "I signed my rights away. I thought I was giving them to my brother." (DCFS declined to comment on Billy Ray's claim, citing confidentiality laws.)
But William, it turns out, wasn't even in contention for the children. When he called DCFS to explain his qualifications — he had a stable income, no criminal background, and a large, two-story house where he took care of his own three children as well as a disabled nephew — he said the worker he spoke to told him that he shouldn't have a problem getting the kids, and DCFS would send someone to inspect his home. But no one ever followed up, and no home study was ever done.
William wasn't the only family member turned down. At least five other family members and one close family friend, representing seven separate homes, each contacted DCFS offering to take the children. All were turned down for one reason or another: Kimberlee because her husband had a 10-year-old felony drug possession charge in his background check that predated their marriage. Terri Turner, Billy Ray's mother, who for years has cared for her quadriplegic grandson, was told first that she was too old, then that she needed to get a misdemeanor charge expunged from her record; after she did so, she said, no one at DCFS ever returned her calls. An aunt wasn't old enough. And so on.
"There's no reason for denial for anybody," Kimberlee said. "But if you have a problem with one of us, then what's wrong with the other one? Or the other one? Or the other one?"
"It must be understood that it is not an automatic 'right' for relatives or grandparents to have the children placed with them," said Department of Human Services spokesperson Amy Webb. "It is always our goal to reunify children with their parents or with their family, when it is safe to do so. Unfortunately, that's not always the case."
A close family friend and former neighbor of the family, who asked not to be named, came closest. She and her husband had cared for two of the children before, and had bonded with them enough that they'd likely qualify as what DCFS calls "fictive kin" — family members in spirit. She wasn't optimistic that any members of the parents' actual family would have been approved. ("If they don't like you, they're not going to work with you, period," she said.) But she knew that she and her husband would have. Their lives were very stable — "almost boring" — and after they applied to foster Kayla and Billy Ray's children, they passed through enough of the DCFS approval process to begin taking foster training classes. They showed up for every one of Kayla's court hearings, although they were never allowed to stay, and when DCFS told them their home didn't have enough bedrooms, they began building another. But as construction was underway, first Kayla's rights were terminated, then Billy Ray's. DCFS decided to let the Fergusons adopt all three.
"The caseworker knew that we wanted the kids. The judge knew. Everyone knew," said the family friend. "They never gave us a reason why." When they found out last winter what had happened to them in the Fergusons' care, she said, "It broke our hearts. We fought for those kids."
In 2008, Congress passed the Fostering Connections to Success and Increasing Adoptions Act, a sweeping bill that touched on many aspects of the child welfare system. Some of its most significant provisions concerned kinship relationships, where grandparents or other extended family members care for children whose parents have lost custody. The act enshrined in law something that children's welfare experts have long acknowledged: that, as a whole, foster children fare better with relatives than strangers.
Arkansas followed up in 2009 with two laws of its own: Act 1311, which requires DCFS to notify all adult relatives when a child has been taken into DCFS custody, and Act 325, which amended the Arkansas Subsidized Guardianship Act so that the state could use federal funding to subsidize relative foster parents.
The same year, the Arkansas legislature called for a study by the House Interim Committee on Aging, Children and Youth that would look into how DCFS practices impact grandparents and other relative caregivers. In 2010, the committee's report found that although some 33,600 grandparents were responsible for around 42,000 children in Arkansas, there were only 913 foster children living with relatives (out of over 4,000 kids who entered the foster system at some point that year).
The reasons for the discrepancy between the high numbers of grandparents caring for children outside of DCFS and their low representation within it seemed a combination of infrastructural and cultural barriers. Grandparents and other relatives were often unfamiliar with the resources available to them and bewildered by DCFS processes. DCFS staff reported they rarely had enough time to adequately track down and vet family members for consideration in determining placement, and a significant minority felt they hadn't been adequately trained on DCFS policy regarding relative caregivers. Some reported that their supervisors, or the judges who oversaw their cases, were opposed to relative caregivers on principle. And others noted that many such families were unfairly held to strict "foster parent standards" when it came to requirements like bedroom numbers or size, even though, the report noted, most relative caregivers are already low-income, with nearly 40 percent below the poverty line, and most living in the poorest areas of the state.
When relatives couldn't get custody of their young family members, they often risked losing touch with them completely — a situation that can traumatize both children and families, leaving them to grapple with "ambiguous loss" and symptoms akin to posttraumatic stress disorder. Caseworkers reported that they recommended ongoing visitation between children whose parents had lost their rights and other members of their extended family less than 40 percent of the time. As one relative caregiver quoted in the legislative report put it, "When the biological parents were deemed 'not fit' and their rights were terminated, not only was a branch severed from the child's family tree, the entire biological family tree was chopped down."
The situation that existed in 2010 seems to persist today: For the last four years, the fraction of the state's foster children who are living with relative caregivers in Arkansas has hovered between 13 and 16 percent, a far lower percentage than in surrounding states, according to a report produced by Paul Vincent, an Alabama-based child welfare consultant who was tapped by Gov. Asa Hutchinson this spring to perform a review of DCFS practices. In Texas and Oklahoma, Vincent found, 29 percent of foster care placements are with relatives.
Meanwhile, the number of Arkansas kids in foster care far exceeds the available foster beds in the state, as the Times reported this summer. "And given the recent increase in the number of children placed in out-of-home care, the problem is getting worse," Vincent wrote in the report, released this July. "Increasing the use of relative placements is the simplest and most promising next step toward expanding placement options." (Vincent's full report can be found here.)
Other states are demonstrably better at protecting relative caregivers' interests. Eight states, mostly clustered on the East and West coasts, have active kinship navigator programs, such as 1-800 numbers or websites maintained by private groups or state governments that grandparents and other relatives can turn to for support, counseling and practical assistance. In New York, recognized as having a model kinship support system, the program offers access to attorneys familiar with kinship care law. In some states with kinship navigator programs, like Florida and Hawaii, 43 to 46 percent of all foster children live with relatives, according to a 2012 Annie E. Casey Foundation report.
As part of the legislative study process, DCFS created a guide to provide relative caregivers with information about the system. But Arkansas has no dedicated kinship navigator program, and that role effectively falls to one nonprofit group: Arkansas Voices for the Children Left Behind. Its founding executive director, Dee Ann Newell has become the state's "de facto kinship navigator," spending hours on the phone each day talking with grandparents and other relatives who are trying to find ways to keep their family together, even as, in some cases, their grandchildren are being advertised for adoption on the nightly news.
- Brian Chilson
- "DE FACTO KINSHIP NAVIGATOR": Dee Ann Newell, director of Arkansas Voices for the Children Left Behind, tries to help families seeking custody.
From 2006 until 2012, Arkansas Voices, which also works with incarcerated parents, qualified as a "family formation" program under the state's administration of federal Temporary Assistance for Needy Families (TANF) funds. The money enabled it to run 10 offices around the state to serve grandparents, each with a dedicated site coordinator who helped relatives identify the meager resources available to them outside the DCFS system. (Many qualify only for food stamps and small TANF child-only subsidies of $81 a month, topping out at $457 for nine or more children. But even that's often denied, Newell said, as many county operations staff, who distribute TANF funds, are unaware of relative caregivers' eligibility.)
Since budget cuts in 2012, however, Arkansas Voices has gone unfunded and its physical offices and toll-free hotline are shut down. "The populations I work with aren't very popular," Newell said. She now fields all requests for help on her home phone, as she and a group of professional volunteers continue on unpaid as a labor of love.
Often, the issues relative caregivers bring up point to another set of problems in supporting kinship care: that DCFS staff and other child welfare workers view the family members of parents who lost custody with suspicion, as though the parents' issues are common to their entire family. It's an attitude that Newell calls "The Apple Tree": the assumption that, when it comes to child welfare cases, the apple never falls far from the tree. "That these are the bad parents who raised the bad parents, so why would we want to give the children to them?"
The 2010 legislative study found this as well. One relative caregiver, a grandmother, testified that when she sought custody of her grandchildren after their alcoholic father lost his rights, she was greeted with a barrage of questions about her own drinking habits, as though she must have a drinking problem, "or some other problem that caused her son to be that way." (The study noted that such issues were not only found within the Department of Human Services, but that the courts and the state's ad litem attorneys, which are appointed to serve as children's advocates in legal proceedings, mirrored some of these attitudes.) Caseworkers also reported to the study's authors that they believed relatives could be problematic caregivers: too likely to make excuses for the parents, or to allow ongoing contact. ("As though that's the worst thing in the world that could happen," Newell said, pointing out that other states, notably California, have successfully taken a different approach to allowing ongoing contact after the termination of parental rights in some cases.)
Newell suspects that, at root, some incidents of kinship care gone wrong — a child harmed when placed with a family member — have scared DCFS and judges away from allowing more families a chance. "Somewhere, there is something that is haunting DCFS about kinship care."
But after working with more than 8,000 relative caregivers over the last 10 years, Newell said, she's seen "unconscionable" disrespect shown to these families, often by DCFS workers from middle-class backgrounds who can't identify with the poorer grandparents seeking custody. "You wouldn't treat your worst enemy the way these relatives are treated," she said.
A former DCFS caseworker in Washington County agreed. When she visited poor, agricultural areas in Northwest Arkansas, she encountered families who said that other DCFS staff had called them "welfare trash" or "baby machines." One grandmother caring for her grandchildren told the caseworker that she was the first visitor from DCFS who had been willing to sit on her couch. And one new hire the staffer was asked to train told her that she refused to work with "these hillbillies, because every time I come out here, I swear I'm hearing 'Dueling Banjos.' "
It's a truism in the child welfare world that lower-income communities receive the brunt of DCFS attention. Assessing adequate supervision and care of children looks different across class lines. Last spring, after an upper-middle-class family in Maryland was reported for neglect for letting their children walk to a park alone, the case garnered rare mainstream outrage and calls that child protective service departments have gone too far in policing families' decisions. But while middle-class white families are lately gathering online to discuss their right to raise "free range children," poorer families and families of color have faced these threats for decades. And the preconceptions that lead to greater monitoring of the poor also filter through when placement decisions are made.
"You may not like it that children live in poverty, and I certainly would like to change that, but just because they're living in poverty doesn't mean that their parents are inept at caring for them," Newell said. "That's a hard thing to clarify for yourself. You have to think long and hard. I've been at this a long time: Do I want to send a child back into a home where there's not enough means, but that's where their parents are and the people they're most attached to? My answer is yes."
DCFS spokesperson Webb said considering relative caregivers is a focus of the agency, and that the agency proposed successful legislation in 2013 to allow fictive kin — people like godparents, teachers or family friends — to qualify as provisional foster parents. However, she said, there are numerous reasons why Arkansas still has such relatively low rates of relative placements: Sometimes the agency isn't aware of the existence of all family members; sometimes there are problems with background checks or insufficient financial resources or space in family homes that preclude placement there. There are also, she said, judges and DCFS staff who "may question [grandparents'] parenting/relationship skills with their own children and question why [or] how they may be different with their grandchildren."
Despite recognition that the state needs to do better with relative placements, there seem to have been few concrete improvements since the 2010 legislative study. In 2011, DCFS' Subsidized Guardianship Program began to support relative caregivers who qualify as foster parents, in cases where adoption or family reunification has already been ruled out, with a stipend roughly equivalent to regular foster parents' board payments ($400-$600 per month). But the program is woefully small. In 2014, it included just six families across Arkansas, caring for 12 children.
Partly this is because Arkansas, like a handful of other states, did not have a state-funded guardianship program before the 2008 Fostering Connections Act. That legislation allowed federal funds to support guardianship programs in 29 states and Washington, D.C., explained Stefanie Sprow, deputy director of child welfare and mental health at the Children's Defense Fund, a national advocacy organization. It was understandable that states newer to the program would lag behind those with longer practice identifying and qualifying relative caregivers — the precondition of qualifying for the guardianship subsidy. However, Sprow noted, other states in the same situation, such as Texas, have managed to "hit the ground running." Although Texas has a far larger foster care population than Arkansas, Sprow attributes its exponentially higher rates of approved guardians to the state's focus on getting relative caregivers licensed as foster parents. Between 2009 and 2012, a Children's Defense Fund report found, Texas increased the number of relative foster homes nearly twentyfold.
"I do think that some states are a bit further along in recognizing the important role that relative caregivers have in this and the space they're providing," Sprow said. "These are the families that are preventing kids from falling into foster care."
What's more notable is that most relative caregivers don't even want to apply for the guardianship program, said Amanda Krotke-Crandall, a Ph.D. candidate at the University of Arkansas, who is writing her dissertation on the program. In Krotke-Crandall's conversations with two focus groups of relative caregivers — mostly single women caring for grandchildren or nieces and nephews — not one member participated in the program. When she asked them why they'd walk away from "money on the table," she said, "it was like they were watching a tennis game — they were just shaking [their heads] back and forth. They were not going to turn their children over to DCFS. Again and again: 'We're scared we're going to lose them.' 'We don't know if we could get them back.' 'We don't feel this is a safe system for our children.' " Some of the relative caregivers had past experiences with the DCFS system themselves; most lived in communities where DCFS intervention was common.
"That board payment wasn't worth it to them," Krotke-Crandall continued. "You could have offered them diamond shoes and it wouldn't be worth it. They didn't want to have anything to do with DCFS."
When relatives call Dee Ann Newell about crises they're facing, she often gives them a standard line of advice. She directs them to talk to their county DCFS supervisors and gives them DCFS Director Cecile Blucker's email. She also tries to coach them on how to talk to DCFS: to be calm, polite and deferential. Not to call too much, lest a caseworker complain that they're harassing them, and to try not to reveal how angry or distraught they feel. She's seen too many cases where relatives who advocate too strenuously end up getting "dumped" — their phone calls unreturned, a virtual black mark next to their names.
When that fails, Newell teaches families how to document their cases, and how to contact their legislators, whose influence can often help to bend otherwise inflexible, and often opaque, DCFS decisions. In a situation where there's scant opportunity for oversight, given state confidentiality laws regarding children in care, families who feel they've gotten a raw deal can often only turn to elected officials for help.
Sha' Burke-Stephens knows this well. A relative caregiver who adopted two of her distant cousins this month, she became a provisional foster parent after their mother, who struggled with substance abuse, had her children placed in foster care. When Burke-Stephens learned where the children were, she contacted DCFS in Independence County, where they lived, to ask about taking them in. The county sent her to her local DCFS office, in Pulaski County, to pick up an application, but when Burke-Stephens arrived, she encountered resistance: DCFS staff who said they'd never heard anything about her, who "looked me up and down," and told her she had to wait for Independence County to notify them.
Burke-Stephens, who is the executive director of a statewide disability-rights nonprofit, Arkansas Independent Living Council, was better prepared than many relative caregivers to navigate the system. She called Pulaski County's area director and told him she expected to be helped.
"I said, 'It's sad if I have to drop names, but I sit in meetings with [outgoing DHS Director] John Selig. I don't want to go as far as calling the governor's office,' " she said. "The next day when I took the background checks back, they met me at the door: One caseworker was doing this, another doing that. They were helping." Her home was opened in 48 hours — what seems like unprecedented efficiency — and she was able to adopt the children within a year.
Since having to grapple with the system herself, Burke-Stephens has become part of an informal network of relative caregivers, and has heard stories of what other, less-privileged family members have gone through: grandmothers court-ordered to undergo psychiatric exams before they can care for their relatives; caseworkers who use caregivers' non-9-to-5 work schedules as a pretext to argue they won't get the children to school on time; judges who veto family caregivers as a rule. The time she's spent with other provisional foster parents since then has convinced her that DCFS needs dedicated liaisons, outside of DCFS resource workers or foster parent associations, to help this group of caregivers find their way through the system, and to help DCFS recognize the needs of poorer families. Burke-Stephens said that her own caseworkers have agreed that some sort of intermediary is needed, but on the several occasions when she has contacted DCFS officials to offer her own services — whether with big-picture application concerns, or smaller details like locating training classes and keeping medical records to DCFS standards — she said no one ever responded.
"Our story is a success story. I was able to go around those barriers, but only because of what I do," she said. "I don't know what all they consider, what makes them say yes or no."
- Brian Chilson
- KARISA HARDY: Says the family is "ready and willing" to take over care of her niece and nephews.
In Cabot, the sentencing of Jacqueline Ferguson for abusing Kayla McPherson's and Billy Ray Turner's three children didn't end the family's ordeal. When Kayla became pregnant again, with a new partner, she was so concerned that DCFS would try to take custody of that child too that she preemptively signed over legal guardianship to her sister, Karisa.
But the first three children remain out of reach. After the family found out about Ferguson's charges, they frantically contacted DCFS, asking again about taking the children themselves.
"Any one of us is ready and willing right now to take all three of them in, to any of the homes," Karisa said. "A family friend, my house, an aunt's house — any of us. We just want them home where we know that they're safe."
The family friend who'd come close to getting custody of the children in 2012, and who's since been approved by DCFS to adopt a different child, contacted her caseworker to say she still wanted them. Her caseworker said she'd note her interest, but never called back. When she called again, another DCFS worker told her that the children weren't in the foster system anymore — the family learned that they'd been placed with Jacqueline Ferguson's brother — and that, in any case, one of her bedrooms was too small by 10 square feet — a matter of being a few inches too short on all sides of the room.
Kimberlee, Karisa and the child's paternal aunt, Amber Butera-Turner, said they were granted a meeting with several senior DCFS staff members, including Director Blucker. In the wake of publicity following Ferguson's conviction, Kimberlee said, the family was treated well. ("You'd have thought we hung the moon. They were nice as could be.") But afterward, she said, no one from DCFS ever contacted them again, and nothing resulted from their appeals. They began to write about the case online, setting up fundraising pages to collect donations for a lawyer to help get the children back, and have sat at tables outside a Cabot Walmart, passing out homemade pins that read, "I gave support to help bring [the three children] home."
At the very least, they hope their efforts will leave enough of a paper trail that, once the children are older, they'll be able to find them again.
"They're going to wonder where we went. They're not going to understand," Butera-Turner said. "People are going to say, 'They didn't want you,' and they're going to look at us like 'You all didn't fight for us.' We didn't want them to ever think that we would willingly give them up."