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Jenkins, 24, worked pricing merchandise at a clothing store before she quit to be a stay-at-home mom. Her long hair shadows her willowy, slender frame. When she turns her head, the shift of her shirt reveals the tip of a bright tattoo on her back. Lines travel her gaunt face, just beneath the eyes, betraying the sleepless nights spent worrying about her sons. CPS did not tell her and Asher where their babies are or who is watching over them.
Asher, 23, keeps his wavy hair, several inches past shoulder-length, tied back so it won't interfere with his job installing hardwood floors. Against his bronze skin, the tattoos on his arms are faint. The couple, together for two years, say they were targeted because of their appearance and because they are poor.
Certainly CPS is concerned with the family's living arrangements and financial stability. "They didn't have a home situation," Hay says of the "high risk factors." "They had a tentative support basis in general. They've been living for two years with her father, who did not seem supportive. They didn't have enough of a job history."
While Nichols and Hay maintain that income is not a factor in this case, during the hearing the court questioned Asher in detail about his wages and expenses.
"You can't have it both ways," says Swisher, who believes CPS is unfairly scrutinizing his clients because they are indigent.
Ridiculous, Hay says. "What being poor means is that you have less resources, less options. It makes you more vulnerable. We really go to great lengths to not confuse poverty with child abuse."
But, Swisher questions, is smoking marijuana truly child abuse? The harm done in separating the children from their parents is greater than the harm, if any, done by smoking pot, he says.
One witness, Dr. Povamma Muthappa of the hospital's neonatalogy intensive care unit, testified that marijuana use is not known to cause either premature births or hydrocephalus. Dr. Susan Robbins, a professor at the University of Houston graduate school for social work, who also trains CPS workers, testified that "a preponderance of evidence shows no harm is done to the fetus when the mother uses marijuana during pregnancy; the same is true for young development."
In fact the only evidence the state has is the positive tests of the newborn and Jenkins. There are no allegations of abuse or drug use against Asher, yet CPS has filed a petition to terminate both Jenkins's and Asher's parental rights. That outrages Swisher. "They are going to terminate [Asher's] parental rights for nothing," he says. "If that doesn't scare you, there's something wrong, that they can stand up in front of a district judge and say that this man has done nothing wrong and that's why we're taking his children away."
Hay says CPS's goal is to reunite the children with their parents as soon as possible. The petition is just standard procedure in Harris County to expedite putting children up for adoption should their parents be deemed unfit, she says.
Swisher, though, is not convinced. Considering that the parents have no prior drug or criminal records and that they took good care of Bishop, why, he asked Nichols in court, did she remove the children during the investigation? Nichols answered that pending drug assessments (interviews to determine the nature of an individual's drug use), CPS can't determine if the parents are prone to future drug use. "We never know exactly what's going to happen in the future," she said.
At the time of the hearing, nearly a month after the investigation began, Jenkins and Asher said that neither CPS nor the agency that oversees the drug assessment, Turning Point, had contacted them. Hay attributes the delay to a lost fax.
Last week Jenkins and Asher visited five-week-old Sylvan, the first time they had been allowed to see him since the hospital. Sylvan, they report with relief, has gained a lot of weight and seems healthy. While Jenkins says she found comfort in meeting the foster parents and learning that they have been regularly taking Sylvan to a radiologist to monitor his condition, she is upset that her son has been bonding with strangers.
At the next hearing, scheduled for this month, the court will review the results of the parents' drug assessments. It could be, Hay says, that they reveal no risks for substance abuse and that the couple just need some parenting information. Yet Jenkins says the Turning Point counselor was biased, telling her -- before the interview even began -- that she would have to submit to random urine analysis and weekly drug counseling.
"There must have been something that would make [the counselor] say that," Hay offers.
Jenkins has given up on fairness; she just wants her kids back. "I have no problems with drugs, but if they want me to go to drug counseling, I'll go to drug counseling. I'm a very good mother, but if they want me to go to parenting classes, I'll go to parenting classes. I don't care. I just want my babies back. Just tell me what I have to do to get my babies back."
E-mail Melissa Hung at firstname.lastname@example.org.