A Family-vs.-State Custody Fight Where Nobody Won

Tobi and Tori sit in their highchairs, side by side in matching mint-green shirts decorated with kittens. The video camera recording the 18-month-olds’ lunch does not move.

Their mother, Emily LaBarge, appears with two plates of food. She seems annoyed.

“We have corn and green beans again, 4 ounces apiece,” she announces to no one in particular. “We have pork chops again today, and they have 2 ounces of pork chops.”

Tobi starts crying, blocks her face with her hands and turns away. Tori starts tossing handfuls of food to the floor. She bangs her spoon on her tray, then drops it too.

Emily and her husband, Roger, recorded this moment; altogether, they have 28 videotapes, which sit in a box under a desk in their living room. They were not trying to preserve memories.

They were building the case for themselves as decent parents.

The state of Kansas took the two girls away from them in 1995, arguing that the twins’ health was in danger. It took nearly four years for their case to run its course.

American parents lose custody of children every day. More than 530,000 children are placed outside their homes by states annually. In many ways, the LaBarges’ story parallels others’. But like each individual custody case, it is unique.

Before theirs ended, they moved their home, changed jobs and declared bankruptcy. Roger LaBarge appeared in court to answer criminal charges.

They heard state officials call them unfit, and neighbors whisper the same. Later, they heard lawmakers call state actions heavy-handed. Debate over their case echoed in the Legislature, where in the end it held the state budget hostage.

Were the twins saved from life-threatening harm, as the state contends? Or were the toddlers harmed, as the parents say, by needless disruption of their family? Was this about protection? Was it about power? Was it about class? Who won? Who lost?

There’s almost nothing the opposing sides agree on, except maybe this--the statement of one official, summing up:

“We don’t operate in a perfect world.”

*

Three days after Christmas 1995, Clay County Sheriff Gary Caldwell served the legal papers, accompanied by a deputy and two social workers from the Kansas Department of Social and Rehabilitation Services, or SRS.

“The sheriff . . . rang the doorbell,” Emily LaBarge recalled. “He told me he had papers to take the girls--and yes, I hit him.”

Clay Center is a town of 4,600 people nestled in Kansas’ Flint Hills. The LaBarges’ split-level house sat on a gravel street next to the whitewashed Calvary Baptist Church. Roger LaBarge was on the job for a glass-fitting shop. Emily tried to stall, waiting for him to get home.

But the sheriff did his job. “You try to understand that a mother would be pretty distraught,” he said, looking back. “It was a chaotic day.”

SRS obtained the order to remove the twins after the agency received a report about the girls’ “failure to thrive.” Tori and Tobi were underweight for their age, and their mother had removed them from the county medical center against a doctor’s advice.

But there was more.

“You’ve got an additive effect as you’re piling more things on top,” said John Garlinger, then the agency’s spokesman. Social workers and others directly involved would not comment.

Emily LaBarge had sought SRS help for herself early in 1995--and received two months of state-paid counseling, according to an SRS memo. She was staying home with daughter Savannah, then almost 4, and Tobi and Tori, 5 months old. She felt confined to the house.

“Roger was gone two or three days a week,” said Joanne Knox, a neighbor who regularly baby-sat.

And there were more troubling contacts with SRS.

Tobi LaBarge’s right leg was fractured in July 1995, when she and her twin sister were almost a year old.

Dr. Jimmie Browning, who examined her in the Clay County Medical Center’s emergency room, noted in his report that he told Emily LaBarge the injury was unusual.

The LaBarges say they don’t know exactly how Tobi’s leg was fractured, though their lawyer later suggested it could have become caught while she was being pulled from the crib by Savannah. Roger said he was napping when the injury occurred. Emily was at the hospital, where she worked part-time as a nurse’s aide.

Required by law to report instances of suspected abuse to SRS, Browning said he found the leg injury “tremendously suspicious.”

“We were seeing too many injuries and deaths in children in that home,” Browning said. Two of Emily LaBarge’s other children had died of Sudden Infant Death Syndrome.

The first death--Hannah, 4 months--occurred in December 1988, before Emily and Roger even started dating. Emily had taken her daughter to Germany, hoping to track down the infant’s father, a soldier. Emily found Hannah dead in her crib. Doctors concluded it was SIDS.

Savannah was born in March 1991, 10 months after the LaBarges were married. Emily LaBarge gave birth again in December 1992 to a boy, Blaine. He died six months later, apparently during an afternoon nap at a baby-sitter’s home. The baby-sitter found him face down in his crib; neither parent was there.

“I still cry today,” Emily LaBarge said.

The causes of SIDS remain mysterious. Some research has linked it to parents’ smoking; Emily LaBarge smokes. Some physicians suspect a genetic cause. An infant’s sleeping position seems to be a factor--SIDS is less likely in children who sleep on their backs. Some deaths blamed on SIDS are later found to be from abuse.

Was the LaBarges’ home dangerous?

No, said former neighbor Terri Roth. If she had had any concerns, her daughter, Tianna, would not have played there. “They were just a low-income family they [state officials] just picked on,” she said.

The LaBarges, who reported income of $21,000 a year, think SRS decided to make an example of them because they are a working-class family.

Class played no role, said Garlinger. Social workers were worried, he said, about Tobi and Tori’s health.

*

Each of Kansas’ 105 counties has an office of the Department of Social and Rehabilitation Services. The Clay Center office has two social workers; a social work supervisor; full-time and half-time support workers who assist social workers; someone who determines eligibility for cash assistance, job training and food stamps; two office assistants and a part-time janitor.

Social workers alone couldn’t have removed the girls. A supervisor had to agree, the county attorney had to go to court, and a judge had to issue an order.

“If there’s any way you can avoid that, you want to. Generally, a child will do better in his own family, even if it’s a rotten family,” said Earl Robinson, a former SRS social worker now with the Manhattan, Kan., school system.

“You know the minute you show up that you’re having a huge impact on a family. If you make a bad decision, you can screw up their lives forever.”

Tori and Tobi were at the Clay County Medical Center on Dec. 28, 1995, brought there by their mother because of the girls’ persistent colds and ear infections.

Staff members noticed signs they considered suspicious. Both girls weighed less than during a hospital visit in mid-December. And that weight was low. They were 16 months old, but medical records show Tobi weighed 19 pounds, 5 ounces, average for a 9-month-old. Tori weighed 16 pounds, 1 ounce, average for a 6-month-old.

The SRS case log noted: Their eyes “were sunk in. [They] did not appear to be too active.”

Hospital staff also noticed bruises.

“They were learning to walk at that time, so of course they had bruises on them,” Emily LaBarge said.

Roger added: “They always liked to tumble.”

When Emily returned to the girls’ hospital room, two police officers were there, taking photographs of their bruises.

She took the girls and left. She later said she intended to take them to a Topeka medical center, 100 miles away, to get a second opinion and treatment she trusted.

Garlinger’s interpretation: “All of a sudden, she has an inkling that there may be a child abuse investigation happening, and she picks them up and bolts.”

What happens within a family is hard to judge. A broken bone isn’t always a sign of abuse, said Ron Zuskin of the University of Maryland-Baltimore School of Social Welfare. “All of us have had moments when children are not in eyeball range and get injured.”

The SRS caseworkers’ log that day quoted a doctor at the hospital: “She . . . does not feel they are in eminent [sic] danger.”

Browning, the doctor, hesitated initially, according to Garlinger, when SRS asked him about Tobi’s fractured leg five months before. “The social worker had to say, ‘Damn it, yes or no? You’ve got to give me a good reason.’ ”

Garlinger continued: “The exact words were, ‘absolutely more likely than not that the incident was abuse.’ When he finally said that, that gave us, again, something else, another piece of that, that we could put into the mix.”

County Attorney Ron Hodgson took the SRS information before Magistrate Judge Ruth Browne.

After a hearing, the judge ordered Tori and Tobi removed from the home, letting them return for supervised one-hour visits.

Within two weeks of the girls’ removal, the LaBarges’ attorney, Christopher Rohrer, had them examined by a specialist in growth disorders, Dr. Wayne Moore of Children’s Mercy Hospital in Kansas City, Mo.

His conclusion: Genetic factors, not neglect, probably caused the girls’ relatively small size.

That was no surprise to Knox, the neighbor. “Roger’s not a big person himself.” He stands 5 foot 4.

Browning, the Clay Center doctor, called Moore’s opinion “ridiculous.” But Moore later added in an affidavit that a growth hormone test indicated levels on “the borderline of deficiency.”

In mid-April 1996, Judge Browne decided to let the girls stay with their parents between 8 a.m. and 8 p.m. daily, then return to their foster home. At the end of April, five months after they were removed, the girls went back home full-time, though SRS retained custody.

*

During this time, Roger LaBarge faced a separate legal problem.

On Jan. 11, 1995, county attorney Hodgson charged him with aggravated battery--alleging he “willfully and intentionally” caused Tobi’s fractured leg. The penalty upon conviction could be three years in prison.

He faced trial in Manhattan, 40 miles away, before District Judge Harlan Graham.

Defense lawyer Michael Grieving argued the cases amounted to “stacking of inferences on inferences.” He asked the new judge to make the prosecutor file a bill of particulars, listing time, place and circumstances of the alleged crime. In July, prosecutor Hodgson dropped the case.

The child-care case was also dropped by a different prosecutor after the family moved in 1996 to a rented $300-a-month bungalow in Marysville, 60 miles northeast. There, regaining custody of their daughters, the LaBarges felt they could begin life again.

But their fight was not over. It took 15 months to get their names removed from an SRS registry listing each as a “perpetrator of child neglect.” In a settlement, both sides agreed that a growth hormone deficiency could explain the girls’ physical problems but also that SRS “acted in good faith upon the information that it had at the time.”

By now, the LaBarges were swamped by bills--legal expenses of $5,000 for Roger’s criminal case and $14,000 for the child-care case; $2,500 in doctors’ fees; and $2,500 that SRS sought as reimbursement for foster care. The couple had borrowed from relatives. They took out a second mortgage on their Clay Center home; when it sold in March 1997, the profits of $1,362 went to SRS. Even though both worked, their expenses exceeded income by more than $300 a month.

With $26 in a checking account, they filed for bankruptcy.

*

Thirty-three lawyers advised the LaBarges that a lawsuit against SRS would go nowhere--immunity laws and the settlement agreement with the agency would prevent success.

There was one last resort. Each year, the Kansas Legislature considers claims against the state by people who cannot win satisfaction in court. The LaBarges filed their claim in June 1998.

“We have lost everything. We are paying for our judicial system’s mistake,” they said in a letter to lawmakers. “We would like to find a way to fight for our rights, our lost time with our children, family and friends, our home, our pride. . . . “

They sought $1 million.

A review committee of senators and representatives recommended paying the LaBarges $42,600, to cover expenses. It included the money in a budget bill drafted for the Legislature’s 1999 session.

It was not to be. Senators rejected the LaBarges’ claim.

“It certainly will make the department very, very cautious,” said Sen. Janice Hardenburger, explaining her opposition. “We must not lose sight of the children we’re concerned about.”

Also voting no, Sen. Stephen Morris said: “I think I would have made the same decisions the SRS social workers did.”

Debate was very different in the House, where SRS had a caucus of critics.

Among the most vocal was Rep. Phill Kline. In January, he became chairman of the House Appropriations Committee, which handles the budget and the claims bill.

Kline grew up in a single-parent home. His mother ran a home day-care center, and Kline said she struggled to work with a state government that seemed determined to put her out of business.

“We don’t have to err on the side of government power,” Kline said. “Government has laws, and government has guns.”

At an Appropriations Committee hearing, members faulted “antagonistic” SRS workers who “obviously wanted to pursue this family.”

The committee included $85,200 in the claims bill for the LaBarges. The House agreed, 106-18.

The claim went to a conference committee--three senators and three representatives, the latter led by Kline, who was also the House’s lead negotiator on the rest of the state budget. That gave him leverage. And he used it.

It was late on a Saturday night, with adjournment on everyone’s mind, when Kline told the conference senators: He would not sign off on the last budget bill unless senators agreed to pay the LaBarges.

“The state did wrong, admittedly by everyone,” he said. “If that had occurred with my daughter . . . I honestly don’t know if I would have been disciplined enough to stay within the bounds of the law to regain custody of her.”

The claim bill was holding up the entire state budget.

Committee senators studied records again. They scrutinized expenses. They came up with a figure: $31,600.

Kline accepted it.

The compromise bill passed both houses, and Gov. Bill Graves signed it last May 17. On the same day, Kline lost his job as chairman of the House Appropriations Committee.

The state sent the LaBarges their check when the 2000 budget year began. After the couple paid off their lawyers, $6,000 remained. They put it in a college fund for their daughters.