One day last June, Detra W. walked into a 15th District police station looking for an officer she knew as Spider. Among drug dealers on the west side, Spider was feared and hated--he had a reputation for going to great lengths to make arrests, even crawling out from under cars and bushes. Spider had busted Detra back in the summer of 1999 for selling cocaine, and now she wanted to thank him. She says he laughed but didn't remember her.
Detra was grateful because in prison she'd gone through drug treatment and finally beaten her addiction. She'd become an avid reader and studied for her GED. She now worked full-time as a detox specialist and lived in an apartment in a secure courtyard building in Austin with the man she'd been with for almost 20 years. The only thing missing was their daughter Gwynne.
The previous year a judge had terminated Detra's parental rights, finding her unfit on four grounds. An appellate court overturned the finding on three of the four grounds, and she appealed to the Illinois Supreme Court, asking it to overturn the fourth--which found her unfit simply because she'd been in prison more than once.
The ruling from the high court, which heard arguments last November, is imminent. Its decision will determine whether Gwynne, who's now five and a half, can be returned to her biological mother or left with the foster family that's raised her since she was born.
The case is significant for reasons that go beyond the architecture of two families. Detra's supporters worry that if the court rules against her--a woman who's thoroughly reformed her life--then no parent who's been repeatedly incarcerated will be able to regain custody of a child who's in foster care.
Detra did everything right once she stopped doing everything wrong. And everything she did wrong happened before her daughter Gwynne was born.
In some ways Detra, now 36, is a familiar product of urban poverty: she was a teenage mother who dropped out of high school and succumbed to the drugs that flooded her neighborhood. She did grow up in a two-parent home, but she had ten siblings, including a twin sister, and her family struggled to get by. "Our gas would be cut off, our lights would be cut off, we would be hungry," she says. "I was like, 'I don't care. It don't bother me.' But it really did bother me. We would get put out, and all the people on the block would see our stuff put out."
The family crammed into one three-bedroom apartment after another. "We moved from the north side to Cabrini-Green and back out west, and then had to go to the south side with my mother's family," she says. "Then we moved to Maywood and from Maywood back out west." The six girls all slept on a king-size bed in one bedroom, the five boys on a king-size bed in another. One of Detra's older sisters had a baby at age 12 and a second child a year later.
Her parents did the best they could, Detra says. "There were just too many of us." She felt rejected when siblings got things she didn't and grew up assuming she wasn't one of her mother's favorites. Only recently did she realize that her mother--who'd worked hard sorting mail for the post office, as an orderly at a mental institution, as a cook for a catering company--didn't have enough money to buy all the children what they needed when they needed it. Detra says her father was "a sweet man" but he never earned much because he drank and couldn't read. He stacked bricks at demolition sites.
When Detra was young she loved school, but the family moved so often she knew her teachers and classes were only temporary. By the time she enrolled in her second high school she'd given up. She got pregnant at 16 and dropped out.
After Judia was born, in July 1984, Detra started getting high on Saturdays with her friends. She had her second child, George, a year later. She left the child rearing to her mother, Essie--who retired early because of arthritis and high blood pressure--and squandered her free time the way most of her older siblings did. "You could walk on any corner and buy drugs," she says.
She started with marijuana but quickly abandoned it for prescription cough syrup, which she says was sold "out the back door" of doctors' offices. She then moved on to Sherman sticks--PCP dipped in embalming fluid--and graduated to snorting heroin. China white did her in. "I started using it," she says, "and I was stuck there for 17 years."
Not long after she had George, Detra went to a lounge looking to get high and bought dope from a man named Ed Davis. He was ten years older than she was, but afterward he would always try to start up a conversation when he saw her in the neighborhood. "It took him a month to get me to talk to him," she says. She liked his smile, and he seemed to genuinely care for her, encouraging her to go back to school while she was still young. She didn't take his advice, but she became his girlfriend.
He called her Fats, a nickname her father had given her. Her nickname for him was Mr. Rogers, because she thought he was neighborly. "We could be going up the street--it would take him forever 'cause he see a lady coming with her bags, he gotta help her, and he gotta talk to everybody," she says. "I be like, 'You can't help everybody. You not going to be able to help everyone.'" She teased him about being so friendly, but she also admired him for it.
When Detra's father died in 1990 her mother moved to Milwaukee to be near one of her sons, taking Detra's children with her. Detra had three by then, the last a daughter she had with Davis named Sade. Despite her addiction, Essie says, Detra "was always a loving parent." Judia, now 20, agrees. "When she showed up I was really happy to see her. We always knew she loved us." Judia says Davis was kind too. "He sent us stuff, talked to us, and I look at him like a father."
Detra thought letting her kids live with her mother was best for them. "I did not want them to see me out there, how I was, standing outside selling packs," she says. She was spending entire days on the corner of Waller and Washington, with heroin packets stashed inside her vagina in plastic bags--safe from a possible police frisk. One of her regular customers was an old man with dementia who used a walker. The sight of him always unnerved her. "I used to pray, 'Please God, don't let me be that old and still be doing this.'" In exchange for selling, she says, she was allowed to help herself to about 40 blows a day.
Davis used too, but Detra says he was a "productive addict"--he'd take care of business before getting high, making sure the two of them were fed and that errands were run. He went to prison in the early 90s on a drug charge and entered a treatment program, and when he was released three years later he was clean.
Davis, who quickly got a job at a bread factory, was frustrated that Detra wouldn't quit drugs, though he never gave her an ultimatum. The drugs took a small part of her, he says, but "she was still a good person." And he believed she'd eventually follow in his footsteps. "I love her. I knew in my heart she was going to get her life together."
Every now and then he'd trick her into going to a Narcotics Anonymous meeting, where he'd introduce her by saying, "This is my wife, Fats. She an addict." She would roll her eyes and walk out. You can't quit unless you're ready, she says, and sometimes even then you can't quit.
By the mid-90s Detra had been convicted twice of retail theft, once for stealing a nightgown she planned to sell for dope money. She got probation, but in 1997 she was convicted of delivering a controlled substance and sent to prison for three years. She served six months but got no drug treatment. She was sent home in January 1998 to serve six more months on electric monitoring, and within two hours she was high. "I got no help," she says. "So six months wasn't enough time for 15 years."
Two months later Detra learned she was going to have to submit to a drug test and broke off her electronic ankle bracelet. She moved down the block but says, "I didn't hide. I just stood out there and worked packs."
Detra was a fugitive for 18 months, during which time Gwynne, her fourth child, was conceived. She says she tried several times to stop using cocaine and heroin after learning she was pregnant and that Davis tried to get her to stop too. She knew the drugs could hurt the baby. But the longest she lasted without a fix was a couple of days, after which she felt so dehydrated and weak and sick she'd check herself into the hospital.
"I didn't know then that if you was pregnant and tried to kick heroin cold turkey that when I get sick the baby gonna get sick, and when she get sick she gonna try to come out," Detra says. "I had been to the hospital like three times. They'd be giving me these methadone tabs. But I would be so sick they could only give me just a little bit, and it was just for the baby. And I'd be like, 'I gotta go--I'm gonna kill myself,' and I'd leave."
In June 1999, Detra says, Spider appeared out of nowhere and arrested her for possession of heroin and cocaine and for delivering cocaine. Because she was visibly pregnant--she was in her last trimester--she was sent to West Suburban Hospital rather than jail. Doctors told her that without an emergency cesarean the baby wouldn't survive. Before being prepped for the operation, she says, she slipped into the bathroom and pulled her cocaine supply out of her vagina. She was clutching the bag as she drifted off under the anesthesia. When she came to, her first thought was not for her baby but for the missing bag of cocaine. "I was screaming, 'Who stole my stuff?'"
But she says that when she held the baby her focus shifted. She thought the baby was beautiful, with so much hair she looked like she was wearing a wig. She also thought the baby looked like Davis and named her Gwynne, after Davis's sister. Gwynne tested positive for exposure to cocaine and heroin and soon showed signs of withdrawal--seizures and problems swallowing and feeding. "My baby was crying, and every time she had to drink a bottle she would throw up and get sicker," Detra says. "I used to cry all the time because I knew she was sick. I knew how it felt when I was sick, so I knew she gotta feel really bad. It changed me. I knew I wanted to make things better for me and her."
Detra went back to prison in August 1999 after pleading guilty to the new drug charge. She was given a four-year sentence, which was tacked onto the three years of her 1997 conviction. As punishment for fleeing, she was held in disciplinary segregation at Dwight Correctional Center for a year.
Eleven days after Detra gave birth the state took temporary custody of Gwynne. Davis was in Cook County Jail. He'd been picked up at a mall in Berwyn that January after a security officer told police he resembled a man who'd stolen a $10,000 engagement ring six days earlier. Davis insisted the guard was mistaken but was convicted that September and sentenced to 18 years in prison.
Gwynne was sent to the Maryville Center for Medically Complex Children, where she was treated for withdrawal, and when she was just over a month old she went to a foster home for babies with special needs--her movements were limited and she had tremors. In December a trial court ruled that she'd been abused and neglected and made her a ward of the state. In February 2000, when she was eight months old, she was placed in the foster home where she still lives. (The Department of Children and Family Services didn't respond to requests to interview the foster mother, who has a master's degree in early-childhood special education.)
According to DCFS records, "several relatives," including Essie and one of Detra's sisters, were asked if they wanted to care for Gwynne before she was placed in foster care, but they all declined. Essie says she never told DCFS she didn't want to take Gwynne.
Charles Golbert, chief of appeals for the public guardian's office, which represents Gwynne, says he has no record of Detra making any effort to place Gwynne with family in the first few months after she went to prison. Detra says she never wanted Gwynne to wind up in a stranger's home, and she made several attempts to keep her baby with family, sending the caseworker contact information for relatives. Essie says she got a call from Detra shortly after Gwynne was born. "She was asking if I would take the baby," she says. "I told her yes, I would." Essie sensed that this time it would be harder for Detra to give up her parental responsibilities: "She was devastated. She had realized a lot of things, and she was older."
Detra says Davis's mother, who's since died, also agreed to take Gwynne but DCFS wouldn't allow the child to live with either grandmother because both lived out of state. Essie says DCFS told her that at 70 she was too old to raise a child. Donna Ryder, Detra's attorney, was told that the baby had recently been moved and the agency didn't want to move her again.
Detra kept looking. She found a friend who said she was willing to care for Gwynne, but the friend changed her mind after learning she'd have to be trained as a licensed foster parent. Detra also found an aunt who was willing to help out. "She wants to know what do she have to do to get custody of Gwynne," Detra wrote the caseworker in the spring of 2000. "I love my baby and I want to keep her and so does her father," she wrote Ryder in August 2000. "I want my baby raised by family. Please let me know if there's anything I can do because [the caseworker] having been giving us the run around."
In the fall of 2000 Davis's sister wrote several letters to the caseworker, pleading for custody of her niece and expressing frustration at getting nowhere. "Here you have an aunt that has express herself so many times," she wrote, "and you keep saying write me another letter so me and my supervisor can talk it over."
The caseworker eventually rejected the idea--and the idea of placing Gwynne with family at all. "This decision was not based on your capacity to parent," she wrote Davis's sister that November, "but on the effects of separation and loss children suffer from experiencing several moves while in foster care."
Ryder says that when she was appointed by the court to represent Detra, "I didn't think there was anything I could do for her. It was a typical case. Somebody with a history, doesn't get it, on drugs." She says clients in Detra's situation rarely make significant progress. "But every now and then you get one that has what it takes." Detra was one of them.
When a child is declared a ward of the state DCFS must quickly choose one of several long-term goals, among them returning the child home, legal guardianship, and adoption. Most often it's returning the child home, since the goal of the Juvenile Court Act of 1987 is to preserve and strengthen family ties whenever possible. When the goal is reunification, DCFS or the social service agency it contracts the case out to--in Detra's case, Lutheran Social Services of Illinois--must come up with a "client service plan" that helps parents correct the conditions that landed a child in DCFS custody. Parents have nine months to make reasonable efforts toward correcting those conditions. If the juvenile court finds that reasonable efforts haven't been made, it can declare the parents unfit. If it does, a separate hearing is then held to determine whether terminating the parents' rights is in the child's best interest. If it is, then the child can be put up for adoption.
Detra's service plan required her to get a psychological evaluation and a substance-abuse assessment, then get counseling or drug treatment if they were recommended. It also required her to complete a parenting course. She was eager to comply. According to DCFS documents, on her own initiative she "informed workers that she is in need of drug treatment and counseling" and "that she wants to complete her GED and has also requested parenting classes." But parenting classes and substance-abuse treatment weren't offered in segregation, so Detra did what she could--put her name on waiting lists. She also got a referral for a psychological evaluation from the caseworker, who noted that the evaluation would be completed at the doctor's earliest convenience.
In segregation Detra read a lot, and she didn't stop when she returned to the regular prison population in August 2000. "Instead of laying down all day long or looking at TV or something," she says, "of course I'm going to do something that's gonna better me." She took a class on dealing with loss and change, studied for her GED, and attended a seminar for people in recovery--none of which were required by DCFS. "I had forgot how much I liked to learn. Now my brain was clear and it came back to me."
Because Davis had been sentenced to 18 years, there seemed no chance he could help make their case for reunification. But he signed up for substance-abuse counseling, even though he'd quit using drugs much earlier, took an anger-management class, and according to DCFS records, continued "to show his interest in parenting Gwynne by sending mail and requesting visits." The records noted that he hadn't taken a parenting class, but he says such classes weren't available to someone with a long sentence.
When the goal is reunification, DCFS and social service agencies must also facilitate regular visits between parents and children. Detra asked for visits but didn't see Gwynne until March 2000, when a caseworker drove the nine-month-old baby to Dwight Correctional Center, 80 miles southwest of the Loop. Prisoners in segregation aren't allowed to have contact with visitors, so Detra was handcuffed and separated from her daughter by a glass window that had a phone on either side. The caseworker offered to put the phone to Gwynne's ear so Detra could say a few words, but Detra says she declined, worried that the baby would get germs from the phone.
In May, only five months after Gwynne had been made a ward of the state, a judge took the first step toward making her eligible for adoption, and the state's attorney's office soon filed a petition to terminate both Detra's and Davis's parental rights. It stated, among other things, that they'd failed to maintain a reasonable degree of interest in their daughter or take responsibility for her welfare, failed to make reasonable progress toward returning her home, failed to make reasonable efforts to correct the conditions that had led to her removal, and behaved in a depraved manner. A few months later the state amended the petition, adding that their histories of repeated incarcerations also made them unfit to be parents.
Case law states that the court must consider a parent's progress toward reunification "in the context of the circumstances in which that conduct occurred." Efforts, even if they're unsuccessful, are supposed to count. Detra hadn't yet met all the goals of her service plan, but she was taking the necessary steps. So when she learned that the state was trying to terminate her parental rights she was confused. "That just blew my hair back," she says. "They were saying, these are the goals you gotta do in order to get your child back. Well, I'm doing your goals--because your goals is my goals now."
Detra kept writing letters to the caseworker asking for more visits. She also sent numerous letters and photos to Gwynne through her caseworker and requested photos in return. One letter reads, "I love and miss you so much. I can't wait until I can hold you." Another says, "You are so beautiful Gwynne. I got you right next to my bed so when I wake up I can look write at you. Valentines is coming up and I want you to know you are my little sweet heart." The holidays were especially hard for Detra, and in one Christmas letter she wrote, "I hate I can't be there with you baby. But next Christmas I will. And your brother and sisters told me to tell you merry Christmas. . . . I can't wait to hold you and see that wonderful smile you have again it just lights up my world. And your daddy say he loves you and he can't wait to see you." Sometimes Detra ran out of envelopes and wrote to her daughter on scraps of paper, including a magazine subscription card. She says she just wanted Gwynne to know she was thinking of her.
According to the caseworker's reports, Detra's visits with Gwynne went well after she returned to the regular prison population at Dwight and after she was transferred to Decatur Correctional Center in February 2001. The visiting areas there were filled with toys and books, and Detra was able to hold Gwynne, play with her, and read to her. She remembers Gwynne pushing the buttons on a vending machine and touching everything in sight. Detra made sure Gwynne knew she was her mother, but she says she never tried to explain why they weren't living together. "I just told her I loved her," she says. "I didn't want to confuse her."
In the two years and nine months she was locked up Detra was entitled to 11 quarterly visits with Gwynne. She got 5. "Sometimes they'd say she was sick," she says. "Or something had happened with the ride." The missed visits weren't rescheduled.
Once the state petitioned to terminate Detra's parental rights, Ryder says, the caseworkers wrote her off. In the eyes of DCFS, the foster parents were providing a safe and loving home. They wanted to adopt Gwynne, and the agency was pushing for the adoption. It was no longer concerned with "strengthening and preserving family ties." It was actively working to sever them.
Detra was released from prison in March 2002, when Gwynne was almost three. She voluntarily signed up for an outpatient substance-abuse treatment program at the Haymarket Center, and after she finished she was hired as a detox specialist.
She'd corresponded with her older children while she was in prison, and after she settled into her Austin apartment her son George, then 17, moved in with her. He didn't stay long. She says they argued about "him selling drugs," and he told her, "You ain't raised me--you can't tell me what to do." That June he was arrested for drug possession and sent to juvenile detention.
Detra says Sade, who was 15 when she got out of prison, waited a year to move in with her. "I think she thought I was gonna start using again," Detra says. Judia remained in Milwaukee near Detra's mother, but says she talks to Detra every day and visits every two to three months. "I'm 20," she says, "but I still love to go and sleep with my mom and let her braid my hair."
When the goal for a child in foster care is reunification the parents have the right to weekly visits, but because the state was trying to terminate Detra's parental rights, DCFS restricted her visits with Gwynne to once a month, at a Lutheran Social Services office.
Gwynne had developmental problems and at times had had occupational, physical, and speech therapy. Detra asked the caseworker if she could attend Gwynne's therapy sessions and doctor visits. Ryder says, "They told her outsiders don't go. That was their attitude--she was an outsider right from the beginning when they decided they were going to terminate her rights."
In May 2001 an appellate court determined the state hadn't properly proved the value of the jewelry Davis had been convicted of stealing, and he won the right to a new trial. Rather than risk another 18-year sentence, he decided to plead guilty in exchange for a nine-year sentence--given the time he'd already served and time off for good behavior, he'd have only another year and a half in prison.
He was released in December 2002 and soon found a job as a cashier. He'd had several visits with Gwynne while he was in prison, and now he began accompanying Detra to the Lutheran Social Services office to visit their daughter. They were both employed and drug free, and they believed they could now raise their daughter and give her a good life.
Detra says that during their visits Gwynne quickly warmed up to her. She liked to pretend she was a baby and curl up in Detra's lap. She dug through Detra's purse, played with her hair, called Davis poppie. Detra brought small gifts: clothes, a purse, nail polish, lip gloss, sunglasses. After learning that Gwynne liked Tigger, Detra brought her Tigger balloons and a Tigger card to celebrate her fourth birthday. She marveled that Gwynne read the card out loud without any help. "She's real smart," she says. "She speaks proper English."
Detra brought Judia along on one visit so the sisters could meet. They stacked blocks and watched The Tigger Movie. "Gwynne danced the whole time," Detra says. Judia says, "She was always in my mama's lap." She also says that Gwynne kept pointing to her and saying, "This is my sister." On a subsequent visit Gwynne asked Detra where Judia was. Detra promised to bring her back on another visit. But, she says, "I didn't get another visit with her."
"Twenty-five, thirty years ago, a lot of very legitimate mainstream people, their approach was family reunification at all costs," says Charles Golbert of the public guardian's office. "Family reunification for the overwhelming majority of children for the overwhelming majority of time was going to be the best. That's been changing over the years, and now I think the majority consensus is reflected in the current Adoption Act."
The Illinois Adoption Act was amended in the late 90s to comply with the Adoption and Safe Families Act, which President Clinton signed into law in 1997 in response to a widely held belief that children were being left in foster care too long. ASFA was intended to expedite the process of moving children in state custody into permanent homes, so Illinois' adoption act was changed to shorten the length of time--from 12 to 9 months--that parents had to demonstrate progress toward correcting the conditions that had landed their children in state custody. A 2002 study of children who'd entered the foster care system in nine states, including Illinois, between 1990 and '99 found that after ASFA became law, the increased focus on adoption seemed to have made reunification less likely. Many people worry that the pendulum has swung too far in that direction, that children are now being pushed too quickly into foster homes and adoption.
To the public guardian's office, which represents the children's interests, this isn't necessarily a bad thing. "Children need certainty," says Golbert. "You want to give parents an opportunity to get their act together, but meanwhile we know that kids are bonding in foster care. We don't want to strip children away from foster care while it's taking parents years and years to try to get their act together."
Terminating parental rights, he adds, is "heart wrenching for the judges involved, for the social workers involved, for the lawyers involved. But for the interests of the kid--either the parent is making efforts or they're not."
He admits that Detra's circumstances "greatly impaired" her ability to meet the DCFS requirements. "If you want to work to get your kid back in jail," he says, "you can't do stuff that's going to get you put in segregation." But Detra was put in segregation because she took off her electronic ankle bracelet--before Gwynne was born.
The juvenile court hearing on whether Detra and Davis were fit to be parents was held on three separate days, the first in November 2002, the second in December, the third in February 2003. Ryder says lawyers from the state's attorney's and public guardian's offices belittled Detra's efforts to work toward reunification. They called the parenting classes she'd completed inadequate given Gwynne's special needs. Ryder says Detra hadn't been required to take a class designed for children with special needs and that by then DCFS records were noting that Gwynne required therapy only on an "as needed" basis.
The state's attorneys said Detra had never undergone the required psychological evaluation, even though the psychologist Lutheran Social Services recommended had said he'd evaluate Detra at his convenience and never followed through. Moreover, a psychiatrist had evaluated her in segregation, recommending only drug treatment and schooling, not counseling.
The state's attorneys also said that Detra hadn't shown much interest in Gwynne because she didn't always request visits while she was in prison. Ryder showed the judge that Lutheran Social Services had canceled scheduled visits and failed to reschedule them, and she produced copies of letters Detra had written to the caseworker, proving she'd requested all the visits she was entitled to. Ryder says, "I have 14 pieces of evidence of her requesting visits--14 when she's entitled to 11."
Ryder argued that Detra had done everything the state had asked of her and more. She'd completed her parenting class, she'd been drug free for three and a half years, and after her release she'd completed a drug treatment program. She was living in a safe two-bedroom apartment, regularly attended Alcoholics Anonymous and Narcotics Anonymous meetings, and was working full-time at Haymarket.
Nevertheless, on March 28 the judge declared that Detra and Davis were both unfit to be parents. Among other things, he noted that Detra hadn't completed the DCFS service requirements in the first nine months after Gwynne was made a ward of the state.
Ryder was dismayed. She says the juvenile court routinely admits evidence from right up until the hearings that shows parents in a negative light, so why hadn't all the positive evidence she'd shown influenced the judge's decision?
At the hearing on what would be in the child's best interests, which was held right after the ruling on the same day, Gwynne's caseworker told the judge that the child had a "very loving and bonded relationship with both foster parents and got along well with her two foster sisters" and that Detra hadn't made reasonable progress toward reunifying with Gwynne because she hadn't completed her service plan in a timely manner, had no knowledge of Gwynne's special needs, and hadn't bonded with the child. Ryder says, "They threw it back in her face that she hadn't learned anything about how to take care of this child when they hadn't given her any opportunity whatsoever--even when she asked."
On May 8, 2003, the judge terminated both Detra's and Davis's parental rights, which ended their contact with Gwynne. They appealed separately, but their cases were heard together.
On February 24, 2004, the appellate court upheld the lower court's decision, finding Davis unfit on all four grounds cited but overturning the finding on three of the four grounds in Detra's case. It concluded that her efforts to correct the conditions that had led to her losing custody "were reasonable under the circumstances." The fourth ground--courts need only one to terminate a parent's rights--was her history of repeated incarcerations.
Judge Rodolfo Garcia wrote a passionate dissent, arguing that the last ground should have been overturned as well. Citing state law, he wrote that the issue before the court wasn't whether Detra had repeated incarcerations but whether they prevented her from fulfilling her responsibilities as a parent. The state's attorney's office had argued that they did, pointing out that Detra had never made dinner for Gwynne, put her to bed, or taken her to therapy. Garcia wrote that it was a "legal fiction" to suggest Detra could have done those things: "as if she could have 'provided a stable home' and financial support while she was in the custody of the Illinois Department of Corrections."
In June 2001 the Illinois Supreme Court had made clear in another case that repeated incarcerations in and of themselves didn't make a parent unfit. "Courts may consider the overall impact that repeated incarceration may have on the parent's ability to discharge his or her parental responsibilities," the court wrote. It decided that repeated incarcerations had indeed made the father in that case unfit to be a parent--he'd been imprisoned nearly his whole adult life and had acquired "no appropriate life skills." He'd also been convicted of violent offenses, threatened his child's caseworker, and failed to engage his child during visits. But the court also wrote, "Under different circumstances, a parent's repeated incarceration . . . may not prevent the parent from discharging his or her parental duties and, therefore, would not establish that parent's unfitness."
Detra, Judge Garcia wrote, "has presented those 'different circumstances.'" Not considering the progress she'd made up until the hearing on her fitness, he wrote, "flies in the face" of the Juvenile Court Act's goal of preserving and strengthening familial ties whenever possible.
Garcia even wrote that Detra should be considered "a model for the effort required to regain fitness. . . . To require Detra W. to have done more than she accomplished...would in effect have required her to have done the impossible--undo the criminal acts she committed while in the throes of a drug addiction. . . . Detra W., as the person she is now, is not an unfit parent because of her convictions and incarcerations."
Ryder hoped the supreme court would see Detra's case that way too. She argued that not to overturn the fourth ground would equate repeated incarceration with unfitness, which she didn't believe had been the state legislature's intent when amending the Adoption Act. She wanted the high court to interpret the law and spell out what the "different circumstances" it had alluded to were.
Others in the legal community also wanted the phrase clarified. When attorneys at New York University's Brennan Center for Justice heard about the case they filed an amicus brief supporting Detra, along with attorneys from the law firm Baker & McKenzie, the Loyola Child Law Center, Chicago Legal Advocacy for Incarcerated Mothers, the Legal Assistance Foundation of Metropolitan Chicago, and Companions Journeying Together, a nonprofit organization that helps incarcerated mothers and their children bond. The brief stated that given the rising number of mothers in prison for nonviolent offenses, if repeated incarceration were allowed to make someone as reformed as Detra unfit, it "can be reasonably expected to create a generation of legal orphans."
Golbert, of the public guardian's office, disagrees. "First of all, you have to eliminate the entire universe of incarcerated people where there's a second parent on the scene," he says. And the state wouldn't necessarily get involved if parents are single, because they're free to make private guardianship arrangements for their children. "So we're only talking about a very small universe of people who go to jail and there's no arrangement to care for the kid."
Yet Golbert doesn't think repeated incarcerations should automatically make a parent unfit. "It's bad for children," he says, "and it's bad for society and bad for our office's clients." That's why his office, in a supreme court brief he and another lawyer wrote, suggested that "different circumstances" should apply in cases where the "parental void in a child's life is insubstantial." They even laid out criteria. "Determining whether a parental absence is substantial or not would involve a balancing of factors," they wrote, including the length of the parent's incarcerations and how long the incarcerations were relative to the child's age. An example of an insubstantial void would be a six-month prison term when the child is 16, because parent and child already have a bond and the short incarceration "would not come at a critical developmental stage where the child would be forming attachments to another parental figure."
In their brief, lawyers from the public guardian's office, who'd asked the court to reinstate one of the grounds the appellate court had overturned, argued that she'd been incarcerated for approximately 75 percent of her daughter's life at the time her parental rights were terminated, "and that incarceration took place during Gwynne's critical formative developmental years." Yet Garcia had pointed out in his dissent that the best interests of the child aren't supposed to influence a court's decision as to whether a parent is unfit--they become an issue only after the parents have been found unfit.
In her brief, Ryder argued that although repeated incarcerations could make a parent unfit, not allowing for the possibility that the parent could be rehabilitated "creates an injustice. . . . If there is no allowance for rehabilitation, then the goal can be termination of parental rights as soon as the child comes into the system--without requiring parents to go through a charade of rehabilitative services in order to get their child back."
If the supreme court rules against Detra, Gwynne can be adopted by her foster parents and Detra will have no visiting rights. If the court rules in her favor, her parental rights will be restored, though she won't automatically regain custody. A judge will still have to decide whether Gwynne should ultimately be sent to live with Detra or left with her foster family, in which case Detra would be allowed regular visits.
Detra hopes the supreme court will think not only about her daughter's current situation but her future. She knows that separating a five-year-old child from the family that's raised her will be hard on everyone, but she wonders what damage will be done to Gwynne if she grows up knowing only that her mother was an addict and in prison or if she learns that she was denied a relationship with a mother who was able to provide her with a safe and loving home and desperately wanted to raise her. "I think she would have a good life," Detra says, "not just with me but with her siblings too."
Detra still works full-time at Haymarket Center, now with women on electronic monitoring. She believes she's steering them down better paths, helping them to live better lives. She's also bettering her own life. She's finishing up her GED and planning to get certified as a substance-abuse counselor. If the supreme court rules against her, she says, "I'm still gonna keep bettering myself, because I know that if she don't find me when she get older, I'll find her when she get older. And I still want to be doing the right thing."
Detra believes that someday Gwynne will want to know her. "Everybody needs to know where they come from," she says. "Everybody needs to know their history, their heritage. When you're young you might not think that you'll need to know, but when you get older you be like, I wonder why I like this or do this like this."
It's now been two years since Detra and Davis last saw Gwynne. Detra says she cherishes the few memories she has of Gwynne, but she's haunted by the ones she's not making. "I think about her every moment. I'm not walking her to school. I'm not cooking her breakfast."
Davis says he's haunted too. He now works delivering milk to schools and often comes home with a story about yet another girl who looks the way he imagines their daughter does.
Detra remembers how her own life was disrupted by evictions, so she says that if she gets the chance to have Gwynne back she'd be careful not to uproot her too quickly. "I wouldn't want to just snatch her," she says. "But I know gradually she can get to know me." If she doesn't win back her rights, she hopes the adoptive parents will reach out to her and allow her to be in Gwynne's life. "I want her to know who I am, and I want her to know that I didn't just give her up, that I fought for her."
Art accompanying story in printed newspaper (not available in this archive): photos/Lloyd DeGrane.