When Ashley checked herself into a homeless shelter for female veterans, she had the well being of her two young children in mind.
Her symptoms from post-traumatic stress disorder had become unmanageable. For years, she had been able to suppress the trauma from her 17-month deployment to Afghanistan with the U.S. Army, as well as the sexual assault she said she suffered at the hands of two men in her unit. But trauma, in time, always boils over.
She wanted to get treatment so she could stay a good mother for her children. She didn’t expect that her time away meant she would lose her parental rights through a section of Colorado law that affords parents few legal protections.
If Ashley had abused or neglected her children while they were in her care, she would have had access to a bevy of state resources: a caseworker, a treatment plan to resolve the problems involved and reunite the family, and a free, court-appointed attorney for parents who can’t afford to pay. But because the new partners of her children’s fathers filed stepparent adoption claims, Ashley had nothing.
It’s a loophole that only exists in cases where stepparents make custody claims.
That discrepancy is what Ashley’s attorney, Katayoun Donnelly, hopes the Colorado Supreme Court will address. Donnelly filed a petition to the state’s highest court on July 5 asking them to decide: Should Ashley, and other parents like her, have an appointed attorney when their parental rights are at stake? Is it unconstitutional that Colorado’s laws give so many protections to parents accused of mistreatment and not to those facing stepparent adoptions, even though both types of cases can lead to the same penalty?
Donnelly, said the termination of parental rights should be considered the equivalent of the death penalty in civil law. It changes lives forever.
“We’re dealing with the oldest, most fundamental right,” Donnelly said. “What is more important that that fundamental relationship? It shapes you, makes you who you are.”
The Denver Post agreed not to use Ashley’s real name because she is a victim of sexual assault and to protect the privacy of the two minor children involved in the case. Her story is supported through court documents reviewed by the newspaper.
Stepparent adoption proceedings are a sliver of a large swath of civil cases in Colorado in which participants are not afforded a right to a publicly-funded attorney. Although defendants in criminal cases have a right to a public defender, those who cannot afford a lawyer when facing life-altering consequences, like losing a home to foreclosure or a child through custody changes, in civil court are left to wade through a complex legal system alone. The traditional business models that govern the legal profession do not allow space for such work because there’s little money to be made, attorneys who study the justice gap said.
“I felt I was at a huge disadvantage the whole time,” Ashley said. “I felt like there was no help for someone like me, it literally was set up for me to fail.”
Unraveling
Ashley joined the Army at 18 years old, shortly after leaving the foster care system in 2005. Before she deployed to Afghanistan for 17 months, she was raped by two men in her unit, who later pressured her into not reporting the crime, she said. In Afghanistan, she worked as a truck driver and survived mortar attacks and an IED explosion that killed members of her unit.
Soon after returning home, she became pregnant with her first child, a boy, and left the military in 2008 to become a the child’s primary caregiver. Four years after that, her daughter was born.
She was working as an emergency dispatcher in Grand County when she started noticing the symptoms of what would later be diagnosed as PTSD. She isolated herself from friends, startled easily and was plagued by nightmares. She started having panic attacks and irrational fears about being unsafe.
She and her partner at the time — the father of her second child, a daughter — moved to Lakewood. The couple split up shortly after. Ashley found herself a single mother of two children struggling to pay rent, even with a job at Veterans Affairs. Stress worsened her symptoms.
In 2013, she was evicted from her apartment. She asked the children’s fathers to take primary custody of the kids until she got back on her feet. In each case, she and the fathers created court-approved written agreements that she would re-establish relationships with her children when she was more stable, court records show.
For the next three years, Ashley struggled as she searched for stable housing, employment and treatment, she said. She lived on acquaintances’ couches. She spent six months in a homeless shelter for female veterans and in 2016 was admitted to an eight-week inpatient Veterans Affairs program in South Dakota, which gave her enough stability to start over again.
During those years, Ashley had almost no contact with her children. She made tiny contributions to child support when she could, but could never afford the full $1,100 monthly payments. When she graduated from the inpatient program, she found a job and housing.
She reached out to the fathers but was met with court filings. The men and their new partners wanted to terminate Ashley’s parental rights through stepparent adoption — where the new partners would assume her legal role as a parent.
That’s when Ashley waded alone into the complex world of family law.
A justice gap
Over the next months, Ashley spent hundreds of hours Googling family law. She owed tens of thousands of back child support. She couldn’t afford a lawyer for either case — one for her son and one for her daughter — and the programs that provide representation to low-income people said they didn’t handle her type of case or didn’t have openings.
That made Ashley one of tens of thousands of people who are forced to represent themselves in family law every year, said Fred Baumann, chairman of the Colorado Access to Justice Commission.
“By and large, people are all on their own,” he said. “It’s really an epidemic in the civil legal service of people who have to represent themselves in these very important issues.”
Those without legal training often do not know how to frame their arguments, call witnesses or experts, tell their stories, or even know what facts are important in their case, he said. These issues are further complicated when a one side can afford an attorney and the other cannot.
Colorado’s courts have attempted to address the issue. But the resources available are a drop in the bucket compared to the need, in part because attorneys cannot make money off many domestic cases if their client can’t afford their fees, said Bruce Wiener, executive director of Bridge to Justice, which provides reduced-rate legal services to people of low or moderate income.
Ashley eventually found a lawyer that would represent her for free in her children’s cases, but the attorney didn’t have any experience in stepparent adoptions. Ashley never had the opportunity to tell her story to the judges, she said. No experts were called to testify on what would be in the children’s best interest, on mental health issues, or how a child is affected by separation from their mother.
The judges in both cases found that Ashley had abandoned her children and didn’t have a good enough excuse to not pay child support. She lost her parental rights.
Still waiting
Had Ashley been accused of mistreating her children, she would have had access to a much wider range of state resources, including an attorney, a social worker, mental health treatment and housing support.
“The same individual, if she were accused of being a bad mom, she would get all those resources,” Donnelly said.
Even a Colorado Court of Appeals judge questioned how the two systems could be so different when he heard the case involving her son in January.
“Why isn’t that an equal protection problem?” Judge Jerry Jones asked.
Nonetheless, the appeals court agreed with the termination and declined to address the basic questions of fairness in the two systems, prompting Donnelly’s appeal to the state Supreme Court.
Donnelly said she’s not sure how many other people have had similar experiences as her client in the legal system. But she’s already gotten a few calls from other parents asking for help.
“We can say they’re not uncommon,” she said.
In the meantime, Ashley waits to see her kids again. She hasn’t seen them in more than five years.
“I just can’t walk away from my children — I need them to know they are loved,” she said.
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© 2019 The Denver Post
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