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Family files suit against DCS for taking infant children

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on Thu, 03/21/2013 - 10:46
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Family files suit against DCS for taking infant children

Parents were never charged with abuse, police say. Jose and Dawn Garcia's son, Dominic, was taken by DCS days after he was born because they were accused of abuse.

CLARKSVILLE, TENN. — Two days after Dawn Garcia gave birth, a social worker with the Department of Children’s Services arrived at the Clarksville hospital and told the shocked new mom to hand over her son.

At the time, the 22-year-old mother and her husband, Jose Garcia, a Fort Campbell infantryman, were under investigation for abusing their 21-month-old daughter — an accusation the couple vehemently denied. Neither parent was ever charged with abuse, according to Clarksville Police.

The girl had suffered a leg fracture the Garcias believe happened in a rickety playpen, but the only sign she was hurt was a swollen ankle. Hospital records note the injuries “may have resulted from a fall.”

But while under suspicion, the Garcias agreed to enter a temporary agreement with DCS to send their daughter to a friend until the investigation was complete, rather than have her placed in foster care.

And then — when their son, Dominic, arrived — a DCS social worker appeared in Dawn Garcia’s hospital room and told the distraught parents that the agreement meant they would have to send their infant son away, too.

Neither their daughter, Ciara, nor son Dominic would return home for another six months — and only after the couple met a lengthy list of expectations that included moving to a bigger home and going to couples counseling, parenting classes, anger management and individual counseling.

“They assumed we were guilty until proven innocent,” said Jose Garcia, 25. “They tore our family apart.”

The Garcias have filed a lawsuit against DCS, saying their constitutional rights as parents were violated, and they have asked for unspecified damages. Their lawsuit also asks the court to order DCS to refrain from pursuing policies that deprive parents of their rights to make decisions concerning the care, custody and control of their child without the opportunity for due process.

Ciara Garcia was separated from her parents for 11 months after a leg injury aroused suspicions of abuse.

Agreements are standard, DCS says

The Garcias’ legal battle is one of two federal lawsuits filed in recent weeks against DCS that center on “immediate protection agreements” that the agency asks parents to sign to temporarily place their children with friends or relatives while it sorts out allegations of abuse or neglect.

The agreements are supposed to last 72 hours but often stretch into weeks or months over unsubstantiated claims, with parents required to meet a sometimes lengthy and often expensive list of requirements to get their children back, the lawsuits state.

In another suit, a Stewart County mother says DCS investigators scared her into an immediate protection agreement that caused her to lose her children for two weeks after a caseworker found nude pictures of the mother on her iPod. DCS caseworkers accused the mother of sexual exploitation of her son and 14-year-old daughter, even though police explained to DCS caseworkers that there was nothing illegal about having nude pictures of an adult on an iPod, the suit states.

Two weeks later, the agency then closed the case with no further action, returning the children — and the iPod. The mother is suing DCS for $1 million in damages.

DCS declined to comment on the specifics of the lawsuits.

But agency officials stress that such immediate protection agreements are a routine part of the agency’s child welfare work.

“If (caseworkers) come upon a situation and see there might be imminent risk for a child and a family has resources, we can use a reliable individual who will help minimize the trauma for the child,” said Bonnie Hommrich, DCS deputy commissioner for child welfare.

There is no way to know how frequently the agency uses such agreements or how many children in Tennessee are out of the care of their parents under the agreements at any given time.

The Department of Children’s Services does not have a central method of tracking how often this happens around the state, officials said.

Parents given choice: friend or foster care

The Garcias moved to Tennessee two years ago when Jose Garcia was transferred to Fort Campbell. Dawn Garcia left her military job with the military police to focus on her family. The couple did not live on the Army base.

On Jan. 27, 2012, the couple took their daughter to Blanchfield Army Community Hospital with leg pains and an ankle that had gotten progressively more swollen over two days, they said.

Hospital records from that visit provided by the Garcias contain this note in their daughter’s records:

“IMPRESSION: Fractures of both tibia, as above. Could have occurred in relation to a fall. No other findings highly specific for child abuse, but would still have a moderate degree of suspicion for such. Correlate with other potential clinical findings.”

Dawn Garcia said she had been home with her daughter but didn’t see her get injured. She and her husband suspected later that the hairline fractures occurred when the girl stumbled off the edge of a raised playpen.

The DCS caseworker called by the hospital to investigate gave the Garcias a choice — to find a friend or family member to take Ciara home or she would be placed in foster care.

The social worker “explained that (Ciara) will take a risk of entering into custody if Mrs. Garcia doesn’t provide the agency with any formal resources for her family,” the caseworker, Debbie Lawrence, noted. She noted that the girl had a “spinal fracture caused by force or twisting of the leg.”

The Garcias say there was no spinal fracture, that no other doctor or nurse had suggested they twisted their daughter’s leg and no evidence of either had appeared on the medical records they provided.

Nevertheless, the Garcias found a friend willing to take the girl home and signed an immediate protection agreement with DCS that said they would have supervised visits with their daughter. The agreement spelled out that both parents would complete a clinical assessment of their mental health, that they would cooperate with DCS, complete a new parents support group and work with Fort Campbell’s social services department.

They appeared before a Montgomery County juvenile magistrate a week later and promised to do everything DCS asked to get their daughter back.

It was costly.

The Garcias voluntarily paid their daughter’s caretaker $400 per month.

And DCS told the couple they had to move, Dawn Garcia said.

They moved from a $650 two-bedroom apartment to a $1,100 three-bedroom home. They kept their fridge and pantry stocked with one month of fresh food at all times, as required by DCS.

'Nightmare' not over

Then Dawn Garcia delivered their son on May 12, 2012. Their DCS caseworker arrived at the hospital two days later and asked them to sign another agreement to take their son away.

“She said, ‘If you don’t sign it, the state will take custody,’ ” said Jose Garcia.

The couple walked out of the hospital with the caseworker and watched her put their son in an infant car seat and drive away.

Dawn Garcia pumped breast milk to give to Dominic’s caretaker, but after five weeks she said she went dry, and grew more depressed. She would drive her husband to the base and sleep in their car until he got off work. She didn’t want to be home alone, she said.

She cried almost the entire four hours every other day they were allowed to visit their children.

DCS missed deadline

When they returned to court in July to update the judge on their progress of meeting DCS’ requirements for their daughter, the court ordered their son returned, noting DCS had never filed a petition with the court to take the baby away from the parents.

When DCS takes a child away from a parent under the temporary agreement, DCS has 72 hours to petition the court if the agency believes the child should continue to be separated from the parents for a longer period of time.

In rural parts of the state, where judges may not convene court every day, that can stretch agreements for weeks until the court opens.

That’s not the case in Clarksville, but DCS did not file a petition with any court to approve removing the Garcias’ son until 51 days after taking him from the hospital and, by then, what Jose Garcia calls their “nightmare” was still not over.

DCS returned the baby that day, then asked the couple to return to DCS offices to sign paperwork that evening, the Garcias said.

They were invited into an office that locked from the outside. And they said DCS caseworkers told them, once again, if they did not sign another immediate protection agreement requiring that their son remain with another caretaker and agree to another series of therapy, couples counseling and child abuse counseling, then DCS would put the baby in a foster home.

The couple agreed to sign the agreement on the night of July 3 before handing over their baby to a DCS social worker one more time.

Clarksville police said the investigation they opened based on DCS’ referral of the unexplained leg fracture to them in January 2012 resulted in no arrests.

The couple got Ciara and Dominic back in November. Ciara had been gone almost 11 months. Dominic for six months. In February, the couple filed their lawsuit.

Photos by Samuel M. Simpkins / The Tennessean
Written by
Anita Wadhwani
The Tennessean