Except for Alice and Ellery Riha, who chose to be identified, and the health and social workers, the names of everyone in this story, including Nicholas, have been changed.
There is nothing about Nicholas to suggest he is anything but a typical ten-year-old suburban kid. He is tall and fit, with a flawless face, thick chestnut hair and a calibrated gap between his front teeth.
Nicholas lives in a red brick house, deep within a subdivision of interconnected culs-de-sac a half-hour from downtown. He owns three Game Boys and the latest Digimon action figures. He's a good student, and he generally comports himself in a way that pleases his parents and teachers.
At this point in his life, Nicholas probably doesn't think much about the improbability of his present circumstances, which involve frequent visits to Chuck E. Cheese's and regular attendance at live sporting events. Such reflection may become necessary at some point, but for now, for the better, it is enough to feel privileged and secure and, above all, loved.
His parents, on the other hand, are still occasionally stunned by the situation. In 1994, after 18 years of marriage -- the second for both for them -- Ellery and Alice Riha packed off the last of the five children they had raised. Ellery, a bond salesman, was looking forward to fewer parental duties and the extra time and quiet he felt he had earned. But Alice, a woman seemingly possessed of a congenital need to be useful, dreaded an empty house. After her daughter married and moved to Dallas, Alice convinced Ellery that they should become foster parents.
The Rihas signed up with a private child welfare agency and submitted to, as Alice puts it, "a goodly bit of rigmarole" to obtain the necessary qualifications. Not long after they were certified, late in the afternoon of November 3, 1994, a caseworker from Children's Protective Services of Harris County came by with Nicholas.
He was three and a half years old and small for his age. He wore jeans, a long-sleeve knit shirt and a pair of cheap canvas shoes. He had no other clothing with him, not even a change of underwear. He carried a small bag of Halloween candy and a stuffed animal, the kind you'd pay a quarter to snatch up with a robotic claw at a truck-stop arcade. His hair was shorn to a bristle, exposing the wound -- a thick, dark scab -- four inches above his right ear.
Nicholas had been accidentally shot by his two-year-old brother, the caseworker explained, and for the past three months had been living in a shelter. The caseworker said the boy was a bit hyperactive, but well behaved. That first night with the Rihas went well. They ate at Luby's with Alice's sister and some of the Rihas' children; everyone clamored playfully for Nicholas's attention, and he was happy to oblige. Later that night, Nicholas was thrilled to learn he had his own room, with a cache of toys on the floor and a bunch of balloons hovering over the bed.
The next morning, after Ellery left for work, Alice and her sister took the young ward shopping for clothes. As soon as they entered the store, Nicholas flew out of control, racing up and down the aisles, diving around and beneath the racks, crashing into other shoppers, all the while shouting incoherently at the top of his lungs. Alice could not contain the boy, could only try to keep up with him, keep him in sight, as he rampaged about. When it was time to leave, Alice's sister stood in the cashier's line while Alice corralled Nicholas, whom she remembers as "totally wild."
"I caught his arms and tried to talk to him," she says. "Oh, he got so angry, so very angry. Then he just collapsed into hysterical sobs and tears."
Alice sat down on the floor, pulled Nicholas onto her lap and rocked him like an infant until he grew calm. Then he took Alice's face in his hands and, in a raw voice, said to her, "I love you, Mom." Alice can sometimes laugh about the movie-of-the-week poignancy of that moment. Back then, of course, she could only wonder what she had gotten herself and Ellery into. "I thought, 'This has got to be the worst kid I have ever seen in my life.' "
No one could have blamed the Rihas if they had exchanged their foster child for a lesser handful that afternoon. If they'd waited a month, after it became clear Nicholas's behavioral problems were pathological, they would have been applauded for their patience. After a year, when Nicholas was diagnosed with attention deficit disorder, post-traumatic stress syndrome and depression, they could have relinquished the boy to a group home or to a family certified to care for emotionally disturbed children. Instead, they took the time to learn how to meet his every need.
By November 1996, after a judge terminated the parental rights of Nicholas's mother, there was only one decision left to make: adopt Nicholas or step aside for someone who would. Knowing too well that Nicholas's devotion to them couldn't be greater if he was their own, the Rihas had already studied these choices for two years from every angle and found each, in its own way, inconceivable.
Alice and Ellery still hadn't found a way around their dilemma when the stakes changed. Nicholas, out of control and hallucinatory, was admitted to a psychiatric hospital in north Houston. Just before he was to be released, CPS abruptly cut off all contact between the Rihas and Nicholas, who was moved to an understaffed residential treatment center. Five years old, alone and cut off from the only real family he'd ever had, Nicholas was defenseless against predatory residents, who subjected the boy to sexual abuse.
Finally, after seven months, during which he received very little of the treatment he needed, Nicholas was transferred to another hospital. By then, Ellery and Alice had reached a conclusion they couldn't turn away from: If they didn't adopt Nicholas, who would?
Nicholas entered the child welfare system for the first time when he was five months old. His mother, a 22-year-old alcoholic prostitute named Dolores Sanders, brought him to the emergency room with a broken right arm, claiming Nicholas had fallen off a changing table. The doctor, a man named Rashid, recognized the upper-arm fracture as a "twist injury" and called in a CPS caseworker, Aida Villarreal.
Dolores had grown up unhappy in Maryland. When she was 16, her father went to prison for beating and sexually abusing her. He died a few years ago -- alone, she points out. Dolores moved to Houston in 1989 with a boyfriend and his cousin, who was an undocumented Latino. When she failed to get the cousin a green card, they abandoned her. She was homeless when she became friends with the night manager at the Western Skies Motel, a tired '50s-era no-tell on Old Spanish Trail near Highway 288. Dolores agreed to cook and shop for the man in exchange for a room.
Dolores told Villarreal that she drank every day while pregnant with Nicholas; she occasionally smoked marijuana and crack cocaine. She had no income, not even a welfare check, and she hadn't seen a doctor until Nicholas was born. His birth certificate said "Father: Unknown."
To the caseworker, Dolores seemed ill-prepared, practically and temperamentally, for motherhood. She appeared exhausted and unstable, and was prone to inexplicable bursts of laughter. At one point, she picked up Nicholas by grabbing his arm. When Villarreal scolded her mildly, Dolores pulled her son close and snapped, "I don't need to be taught how to handle a child."
That's not an uncommon reaction from parents who are accused of child abuse. In fact, nearly nine of every ten referrals like Nicholas's don't merit further investigation. That still adds up to 17,000 investigations a year, involving the safety of 25,000 children.
For long stretches of time, for better or worse, the child welfare system operates beneath the public radar. Then an infant dies in a foster home or a mother who kills her children turns up in an old CPS case file, and the system is confronted with its perpetual quandary: Taking kids who aren't seriously threatened is bad for families; taking them too late is bad for society.
Critics and advocacy groups like Houston-based Justice for Children have long complained that child welfare agencies value family unity over child protection. Indeed, until it was revised in 1998, federal law threatened state and local agencies with funding cutbacks unless they made "reasonable efforts" to return children to their homes.
But words like "reasonable," not to mention the nature of the crime itself, make child abuse a difficult case to prove from a legal standpoint. Suspicions don't hold up well in court, and much of the time that's all CPS workers have.
"We have to be able to prove that the only way to protect the child is to take him out of the home," says Judy Hay, director of community relations for CPS of Harris County. "If the mother is willing to accept services, if there is no prior history of abuse, no doctor's statement of abuse, then we don't take custody."
For CPS, Dolores changed her story about Nicholas's broken arm: He had been lying on his stomach when she gripped him by his left arm, she said, and when he rolled over on his right arm, she heard it snap. The caseworker passed that explanation to Rashid, who conceded it was plausible. Still, the doctor suggested CPS step in and let the child remain in the hospital for a day or two as a precaution. Not possible, Villarreal replied. The agency couldn't take custody of Nicholas without an affidavit from Rashid alleging he wasn't safe at home. The doctor signed a CPS release, authorizing Nicholas to leave with his mother.
The agency did, however, arrange for a social worker to visit Dolores. While she resented the intrusion, she mastered the drill. By spring 1992 Dolores was going to church, making her own baby food and on the third chapter of a book on nurturing, according to CPS records. The agency closed her case that August; Dolores was six months pregnant at the time.
The father was her steady boyfriend, Miguel Rojas, a self-employed roofer who spoke little English. Nicholas loved Miguel, but when his brother, Jordan, was born, he couldn't abide the competition, and his behavior turned menacing. He started by pulling the baby's arms out of the crib, then moved on to burning his mouth with the juice of a jalapeño. Lately, Nicholas had taken to playing with knives.
Dolores was so frightened by Nicholas she took him to the psychiatric unit at Cypress Point Hospital. "I can't handle this child anymore," she told the admission staff. Nicholas spent a week at Cypress Point. His psychiatrist's case notes describe him as clumsy, restless and "highly distractable," with a profound speech impediment that rendered him unintelligible.
After his release, Nicholas was referred to an early-childhood education program at the county mental health center. Dolores was advised to get treatment for depression and alcoholism, and to attend another round of parenting classes. There is no evidence, however, that CPS was notified of Nicholas's hospitalization or the situation with his family.
An urgent call finally came in from Nicholas's therapist at the Mental Health and Mental Retardation Authority of Harris County. The therapist alerted CPS that Dolores posed a serious threat to her children, which now included a newborn, Stephen. That morning, in anger, Dolores had slammed a cup to the floor that ricocheted off Nicholas's leg, leaving a bruise.
Indeed, the CPS caseworker who interviewed Dolores the following day noted that she exhibited "bizarre behavior" and seemed "out of control." Concluding that Nicholas was in a "life-threatening" situation, the agency placed him in a shelter called Casa de Esperanza de los Niños.
After reviewing the case, the shelter's mental health clinicians recommended that Nicholas be put in foster care and that Dolores undergo mental health counseling. Instead, CPS pulled Nicholas out of the shelter and sent him home. In a sharply worded letter, a Casa de Esperanza psychologist put CPS on notice: "A return home at the present time puts Nicholas at high risk for abuse."
Four months later, at about 2 a.m. on August 15, 1994, Dolores was fixing the door to her apartment when her three-year-old son, Nicholas, came into the room with a loaded .38-caliber pistol. According to the statement she gave police, Dolores took the gun away and went back to work. A few minutes later, she looked up to see Nicholas and Jordan struggling with the weapon, just before it went off.
Three days after the shooting, Nicholas was discharged from Ben Taub General Hospital and joined his brothers at a Gallagher Drive shelter named Patrice House. Dolores, who was granted monthly visits with her children, took a CPS referral to Alcoholics Anonymous and moved to San Antonio, where Miguel had a roofing job.
Around that same time, the Rihas were finishing up their foster care training with Homes of St. Mark, a private agency that finds shelter for children who are in CPS custody. The state-regulated certification required weeks of seminars and classes, probing interviews and questionnaires, and criminal background checks. The house was inspected by the fire marshal and swept for hazards by child welfare workers. Homes of St. Mark told the Rihas to expect a foster child to remain in their home for anywhere from two days to a few months. Alice wanted a little girl, someone she could dress up and coo at.
When Nicholas arrived, he split the Rihas' world into extremes. He threw one tantrum per day, but at night he couldn't get close enough to Alice and often insisted in sleeping outside their bedroom door. Nicholas was frustrated by his severe speech impediment. He almost hyperventilated before Alice could understand the words "Ninja Turtles."
As Alice recorded, when Nicholas was denied or scolded, he sometimes switched allegiance to Dolores. "I just tell him, 'I like your other mom, too, and I like you even if you don't like me right now,' " Alice wrote. "He seems not to understand why I still like him if he's so bad, I guess."
Nicholas spent an hour with his family every month, as part of CPS's collection of observations and prescriptions known as the "permanency plan." Dolores dispensed little gifts to the boys, took down clothing and shoe sizes, made promises of toys and bicycles. At Thanksgiving, the Rihas got permission from CPS and Dolores to invite Nicholas's brother Jordan to spend the weekend. One night Nicholas became visibly anxious and, as Alice recalled later, even more clingy than usual. He wrung his hands like an old man and jumped at shadows and reflections in the window. Alice cradled him for hours.
"Finally I told him not to be afraid because no one would want to hurt such a sweet little boy," Alice wrote in her journal. "He said, 'My other mom did. She got a gun and shoot me head.'
"I was amazed. I said, I think you're mistaken. I think you and Jordan were playing with the gun and it went off accidentally. He said, 'No, my other mom shoot me head.' He was so upset."
Nicholas began to repeat the story obsessively, adding a detail or two each time. He described how Dolores put a towel on the wound and gave him a glass of juice. He remembered the lights of the patrol cars and Dolores's apologies on the ride to the hospital.
CPS heard Nicholas's account firsthand at least twice. On one occasion, he re-enacted it with dolls; on another, Craig Clarkson, a CPS caseworker, asked Nicholas about his scar: "My other mommy shoot me," he replied, according to Clarkson's case notes.
Finally, the Rihas' liaison at Homes of St. Mark complained to a CPS supervisor about the agency's "handling" of Nicholas's allegation. Pointing out that "the perception or reality that his mother shot him can be a major obstacle to bringing a family back together," the liaison demanded that someone confront Dolores.
Although she insists it was a chance encounter at a family visit, Alice got to her first. They happened to be sitting on a bench together, waiting for the CPS caseworkers to finish their monthly interviews with the boys. Dolores showed Alice a silver medallion awarded by AA to mark six months of sobriety. According to Alice, she then asked if Nicholas had mentioned the "incident." When Alice replied that he had, Dolores said she and her son had made amends, that he now understood the shooting was an accident.
Dolores, who hasn't seen Nicholas in almost five years, still believes that. In a recent telephone interview, she stressed that she has never laid a hand in anger on her other two boys. She's working now, as a self-employed house cleaner, and she has a decent car and better prospects than in 1994, she said. She had no money then, and Miguel wasn't sharing enough of his irregular paychecks. She started drinking heavily and taking diet pills. "I was really, really out of it," she said.
It was the middle of the night, and the pistol was out in the open for protection. Nicholas woke up first, then Jordan. Dolores recalled, "They were playing in the front room while I was trying to do carpentry, and I guess they were getting on my nerves. I said, 'Quit it, your brother's asleep.' They just got more and more rowdy. I said, 'You need to behave or I'm going to hurt you.' I picked up the gun and said, 'Okay, I'm putting you to bed.' It sounds stupid, but I forgot it was cocked. I heard this loud bang, and then the living room was full of smoke. I looked at Nicholas and saw the blood."
"I lied to the police," Dolores admitted. "I was afraid I'd get arrested for trying to kill my son."
Dolores eventually came clean to CPS, admitting that she had pointed the gun at the boys to scare them into behaving. But for more than two years, the agency seemed unsure of what to do with the information. Caseworkers reported it to the Houston Police Department but quietly let the matter drop when they were informed Dolores would be hard to prosecute unless she admitted she shot Nicholas on purpose.
Moreover, it took more than two years for the agency to decide Nicholas could never return to his mother. In the meantime, the boy's emotional state fluctuated wildly. In May 1995, for example, Annette Vaughn, a private therapist who contracted with CPS to treat Nicholas, marveled that her patient was "really a very different little boy now." Vaughn had once considered Nicholas the most aggressive four-year-old she had ever seen. But, she reported, "he has really responded to the care of his foster mother."
Vaughn had a different opinion just two months later. Nicholas had "definitely regressed," she noted. He was suffering flashbacks and was terrified of his mother. On Vaughn's advice, CPS postponed his visits with Dolores until further notice.
Nicholas's unpredictability demanded constant supervision. Except for a few hours a month, when she dropped him off at a day care center to give herself a break, Alice was both guardian and companion to Nicholas, who apparently never missed an appointment or family visit; caseworkers unfailingly noticed that he was clean and well dressed.
But, to the Rihas at least, CPS seemed to regard their motivation with suspicion. The agency first grew wary when Alice pressed CPS to place Jordan in her home along with Nicholas. Alice crossed another line, apparently, when she discussed the shooting incident with Dolores. One caseworker noted that, in doing so, Alice may have wanted "to shape this case not in accordance with agency policy and priorities."
Even Annette Vaughn, who had praised the Rihas for their care and handling of Nicholas, noted in April 1996 that the couple's relationship with their foster child was "moving in the direction of being somewhat unhealthy." Vaughn recommended that CPS delay the termination of Dolores's parental rights until the therapist could "see what's going on."
"There was this continual dealing with the Rihas around appropriateness, around discipline, around his emotional needs," CPS spokesperson Judy Hay explained.
Caseworkers suspected, among other things, that Alice was coaching Nicholas about the shooting incident, Hay said. The Rihas had also tried to break Nicholas of his chronic bedwetting by making him wear a diaper.
Alice acknowledges she shouldn't have put diapers on Nicholas. But she maintains the conflict with CPS is a factor of the agency's culture, which, in the most basic way, puts unreasonable expectations on foster caregivers. Caseworkers repeatedly warned the Rihas to keep an emotional distance, she said, or they would find another placement for Nicholas. "If I didn't quit getting so involved with this little boy," she said, "they were going to take him out of our home. And that was that."
Pat German, director of the Children's Crisis Care Center, which opened in 1999 to provide psychological services to every foster child, is doubtful the issue was handled so crudely. Yet many foster parents make the mistake of forgetting their services are temporary, German says. Some quit foster parenting altogether after giving up a child they can't replace.
"I don't know that I've ever heard anyone say the foster parents aren't supposed to become attached to a child," German says. "They might have to let them go, that's the problem. I think that's something that every foster parent struggles with."
As early as August 1995, the Rihas had discussed with CPS the practical issues of taking permanent custody of Nicholas. Alice was clearly prepared to step up and adopt the boy, but Ellery had his eye on the child's long-term care needs. It wasn't unreasonable to assume Nicholas would be in therapy or on medication, or both, for a long time, possibly the rest of his life.
Indeed, while Ellery fretted, Nicholas's stability seemed to be eroding by the day. Alice's journal filled with discouraging accounts, such as the day he spit on his teacher and exposed himself to a classmate. At home, Nicholas kept the Rihas constantly on edge, and the family outings he usually enjoyed became impossible.
"Mornings are especially dreadful," Alice wrote. "Getting Nicholas ready for school, he is totally uncooperative. He won't eat. He won't get dressed and he won't sleep in his room."
Nicholas settled down once his psychiatrist put him on two daily doses of Dexedrine. But by then he had developed Tourette's-like symptoms -- verbal outbursts and involuntary jerking movements of the neck and shoulders.
A break finally came August 20, 1997, when, after more than three years, a family law judge terminated Dolores's parental rights. CPS began planning a series of monitored "closure" visits to give Nicholas the chance to say a proper good-bye to his mother and brothers.
While his caseworkers noticed an improvement in Nicholas after he learned he'd never have to return to Dolores, the Rihas were torn, or at least Alice was; Ellery had already made up his mind.
"The psychiatrists told us that when a child experiences the kind of problems Nicholas had at an early age, without proper care they can come back ten years later," Ellery recalls. "Frankly, at my age, I didn't particularly care to have a rebellious teenager around who could probably kick my butt. We were going in opposite directions, if you know what I mean."
Alice tried to buy time by offering to become Nicholas's permanent managing conservator, a route usually taken by grandparents and other relatives to keep a child in the family. Coming from Alice, it led to a misunderstanding that the Rihas and CPS probably will never resolve.
The agency apparently thought the Rihas had already made a decision on Nicholas and were now trying to back out of it. An internal memo from a CPS supervisor to caseworker Kathy Whipple accused the Rihas of refusing to adopt Nicholas "because if his behavior escalates, they think they can give him back to the agency They had the biological mother, therapists, CPS and everyone else concerned for the child, believing they were going to adopt I need as much help as possible to let the Rihas know their options."
In mid-November the Rihas met with a group of CPS caseworkers and supervisors. There was only one real option for Nicholas: adoption. The Rihas would be eligible for a state adoption subsidy that, while it wasn't much -- enough to cover a fraction of the cost of private insurance -- it was better than conservatorship, which came with no financial assistance. Moreover, according to a caseworker's notes, if the Rihas were awarded conservatorship of Nicholas, CPS would step in again only in cases of abuse or neglect. In other words, if the Rihas couldn't take care of Nicholas, they could be held liable.
"Ms. Riha became very upset with her options," the caseworker noted. "We, as a group, gave them two months to decide on the permanent plans for Nicholas or he will be registered on the Texas adoption exchange."
A few weeks later Alice brought Nicholas to a Chuck E. Cheese's near the Galleria to say his final good-bye to Dolores, Jordan and Stephen. With Alice's help, Nicholas picked out a farewell gift for his mother, a gold necklace. Dolores slipped the boy a small Bible, in which she had listed her date of birth and social security number so he could look for her when he turned 18.
Dolores's desperation that afternoon was matched only by Alice's. How soon before she too would have to say good-bye to Nicholas?
"We started working" with CPS, Alice recalls. "They said, 'You need to wear a particular fragrance all the time and when another mother adopts him, give her that fragrance to wear and he'll identify that with mother.' That would make the transition easier, they said. But it was breaking my heart."
Before CPS could place Nicholas with another family, his behavior took a desperate turn. Throughout the Christmas season, Nicholas had been as aggressive as the Rihas had ever seen him. He was having recurring nightmares, including one in which his mother chased him off a cliff. Alice suspected he was having hallucinations; Nicholas said he could watch television on the ceiling.
One morning in January 1997, Alice heard her Yorkshire terrier screeching wildly. She found the dog in the kitchen, bleeding and badly injured, and Nicholas glowering nearby. Alice first called Nicholas's psychiatrist, then his CPS caseworker, Kathy Whipple. Both suggested she take him to the psychiatric unit at Forest Springs Hospital, a shaded two-story building in north Houston.
According to hospital records, Nicholas was aggressive and profane after admission. He listened to no one and talked incessantly. He told a staff member that he hurt the Rihas' dog "because he was licking me the wrong way." He spoke of a "sun devil" that had given him a special remote control that "lets me watch television in my head."
Nicholas was examined by Jim Whitely, a psychologist at Forest Springs. Whitely noted the "probability" that Nicholas had suffered brain damage when he was shot. He recommended an MRI and CAT scan. He also recommended Nicholas participate in family therapy with his foster parents, whose involvement in his future prognosis, Whitely said, was "critical."
For reasons that remain unclear, that last bit of advice was ignored, setting off a chain of events that could haunt Nicholas for the rest of his life. Alice and Ellery visited Nicholas almost every evening, when he invariably asked to come home. He also made that request repeatedly to Whipple, his caseworker. In late January, according to CPS case notes, Nicholas told Whipple that he wanted to be adopted and go home. The caseworker told him he could be adopted "by anyone."
Later that same day, Alice called Forest Springs and talked to Debbie Wright, Nicholas's therapist. Alice was surprised to learn Nicholas had been moved to a residential treatment center on the second floor of the hospital. But when Alice tried to get more information from the therapist, she was told that a "new directive" from CPS prohibited the hospital from giving out any information about Nicholas.
Alice immediately put in a call to CPS. Whipple's supervisor, Ruth Doucette, told her that Nicholas was too sick to come home. He would remain in the residential center for a minimum of six months, then be reassessed. In the meantime, Nicholas would not be allowed any contact with his foster parents.
As Ellery recalls, he and Alice were stunned. "We thought he was going in for about two weeks while they tested him and maybe put him on some medication," he says. "He's in there a couple weeks, and unbeknownst to us, they make the decision that he needs to be in the residential treatment facility and we no longer had any right to him anymore. We weren't even considered his foster parents. We were nothing."
A few days later the Rihas filed an emergency motion seeking temporary custody of Nicholas. In an affidavit filed with the court, Alice argued that despite what CPS had decided, Nicholas's psychologist had recommended family therapy. "And at this point," she said, "my husband and I are his family."
Alice also maintained -- and nothing has happened to change her mind about this -- that CPS was trying to force Ellery and her to adopt Nicholas by abruptly ending their relationship with the boy.
"His birth mother shot him in the head and they didn't do that to her," Alice argued. "They took two years to terminate her rights, but let her have visitation with him. We didn't have anything. It just wasn't right. And it couldn't have been good for him."
CPS's Judy Hay says that for months the agency had been trying to "clarify" its message that the Rihas would not be able to remain Nicholas's foster parents indefinitely. But the decision to halt visitation was made for medical reasons, Hay says, not to punish the Rihas or leverage their attachment to Nicholas.
"It was our responsibility, not the hospital's, not the foster parents'," Hay argues. "We asked that they attend his therapy and have weekend visits when he was ready. And should he be released from the hospital, they could continue to be his foster parents until a permanent home was found."
The Rihas' motion for temporary custody was denied. But with the help of their lawyer, they were able to persuade CPS to let them visit Nicholas and to occasionally bring him home on weekends. The Rihas were happy, of course, but their visits with Nicholas seemed to grow more difficult the longer he was at Forest Springs. One reason, perhaps, was his constant association with older boys at the facility, many of whom were just as angry and aggressive as he was. Over time, Nicholas became, as Ellery described him, "a juvenile delinquent."
Nicholas was considered "a critical risk to himself" at Forest Springs, and required constant supervision. His treatment plan consisted of behavior modification therapy and medication for hyperactivity and anxiety. But Youth for Tomorrow, a state contractor that reviews the mental health care provided by CPS and other child-care agencies, determined on two occasions that Nicholas wasn't receiving the treatment he needed.
In May the contractor's report noted that his medication was not being monitored, nor could Forest Springs document his therapy and recreational activities. In July the review found that "consistent services could not be verified in any areas."
In late August, just before Nicholas was scheduled to come home for the weekend, Alice got a call from Whipple, who said that Nicholas had been caught performing oral sex on his roommate earlier that month. She asked the Rihas to keep a watchful eye on the boy for signs of emotional distress.
One evening Nicholas took some molding clay and shaped it into a face and a long cylinder. Alice watched as the five-year-old started trying to feed the cylinder into the face. According to her diaries, Alice asked him if the cylinder represented a penis. Nicholas answered that it did.
"He said this is what happened at the hospital," Alice wrote. "I asked him where he learned that stuff. He said, I saw George and Art doing it." Alice learned that at least four boys at Forest Springs, including George and Art, had promised Nicholas toys, clothes and other personal items in exchange for sexual favors. He also suggested he had been sodomized.
Alice and Ellery rushed Nicholas to the emergency room. He was examined, but according to the hospital report, there were no signs of "obvious" sexual or other abuse. The following day Nicholas was looked over at the Harris County Children's Assessment Center, where the results of an anal exam were "suggestive of prior trauma." During an interview with a caseworker, Nicholas said, "a boy named David did it."
When the Rihas met with CPS, they were told that Nicholas had "sexually acted out" on at least two other occasions. The first occurred in March, a little more than a month before Nicholas's sixth birthday. According to the findings of an investigation by the Texas Department of Protective and Regulatory Services, which licenses residential treatment centers like Forest Springs, a resident reported that Nicholas and another boy "had engaged in sexual touching." Although nothing in the report confirms the incident took place, Forest Springs was found to have violated its own policy limiting residential admissions to children no younger than six.
The other incident, a group encounter witnessed by a staff member, was apparently never reported to state child welfare officials. According to an internal Forest Springs report, the group sexual activity occurred over a period of time and involved six children, one of whom was 13. The children were told "this behavior would not be tolerated," said the report.
The residential treatment center at Forest Springs, which was operated by Dr. Timothy Sharma, a neuropsychiatrist, closed in July 1999, according to state records. The following month Sharma opened a center called Upward Reach in the same building. It remained open less than a year and, according to state records, was chronically understaffed.
Forest Springs apparently had the same problem. An investigation into the August 1997 sexual incident involving Nicholas by the Harris County sheriff's department included statements by Forest Springs staff members that the residential center never seemed to have enough employees on duty.
A unit counselor named Jason Hathhorn told sheriff's deputies that there weren't "enough hired staff to adequately supervise the kids" at Forest Springs. "The hospital is concerned with overtime," Hathhorn said, "and they don't want anyone to get more than 40 hours of work per week." Another unit counselor, Sheila Carey, said the job was not a "priority" for some employees, who came to work when they felt like it.
After Nicholas was examined in the emergency room, the Rihas brought him back to the house. It was late. Alice tucked him into his bed, before retiring with Ellery. They were asleep when a sheriff's deputy rang the doorbell. The officer explained he was there to pick up Nicholas; CPS planned to transfer the boy to Devereux, a residential facility in Victoria.
The Rihas were incredulous, and became even more so the following day when CPS again advised them that they were not to visit Nicholas. Again, the Rihas thought CPS was trying to pressure them to adopt Nicholas, and again, they hired a lawyer.
But this time they hired an adoption lawyer. On October 22, 1997, Ellery and Alice left the Harris County Family Law Center and drove the 70 miles to Devereux to take permanent custody of Nicholas and bring him home. Two years later they adopted him as their own.
What brought the Rihas around is hardly a mystery, or at least it isn't to Alice. "I really did want a little girl, and I told them that," she says. "But when I prayed about it, I prayed they would send someone who really needed us."
Nicholas is, as his mother describes, "just a remarkable boy." But most of the time, he's just a boy, who enjoys sports, new toys, board games, pizza and anything else a ten-year-old can think up for entertainment.
Except for a slight thickness in his speech, Nicholas seems -- for now, anyway -- to have overcome the earlier deprivations in his life. Reconciling the "wild child" described in Alice's diary with the steady, personable boy he appears to be is difficult.
While the long-term effects of his fetal alcohol syndrome and post-traumatic stress disorder are anyone's guess, Nicholas has exceeded the expectations that many people once had of him. He's in therapy but right now isn't taking any of the medications that once tamed his behavior.
When he was younger, educational and developmental assessments routinely described Nicholas as "marginally intelligent." In one scenario, he was considered borderline mentally retarded. But last year, when he was in third grade, Nicholas took the Metropolitan Achievement Test, a comprehensive skills assessment used by many private schools. His score ranked him in the 88th percentile, which the Rihas have been assured is exceptional.
Alice is 56 years old now; Ellery just turned 63. Nicholas has put a crimp in their retirement plans, to be sure, but so far he hasn't driven them into poverty. The private school he attends is paid for from a trust fund established with two out-of-court settlements the Rihas reached with Timothy Sharma and Forest Springs Hospital.
The Rihas remain bitter over the treatment they and Nicholas received from the child welfare system, and continue to rail against its deficiencies -- especially when it comes to emotionally disturbed children.
"These kids were dealt a bad hand to begin with," Ellery says. "But the cards don't get any better when they're in that system."
Judging by the voluminous record on Nicholas -- thousands of pages of assessments, case notes, hospital records and progress reports -- Nicholas was a difficult case for Children's Protective Services of Harris County. For its part, CPS has tried to improve its accountability to kids like Nicholas.
For one thing, parental rights are now terminated within one year if the evidence supports it. In 1999 the state opened the Children's Assessment Center, on Murworth, to give structure to the treatment of all foster children. Rather than wait for a child to display symptoms of an emotional problem, the center evaluates and assesses all children within 45 days of their entering the system.
It's hard to say whether any of this would have spared Nicholas some of the pain he endured. But even CPS spokesperson Hay acknowledges that Nicholas is "very, very lucky."
"The Rihas fought for him, they fought for him," Hay says. "Kids need that."
While Alice couldn't shortchange Nicholas if her life depended on it, she says, "If there's a hero here, it's Ellery."
And of course he feels the same way about her.
"I'm a hero only because I didn't say, 'Hell, no, I'm not going to do it,'" he says. "Truthfully, I wouldn't have done this without her insistence. We both came around and adjusted to what we had to do."
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