Irreconcilable Differences

His name is Gregory K., he is 12 years old and all he wants is "a place to be." Gregory has few memories of his childhood, not enough of them happy. His mental photo album holds a depressing collage of fights between his parents, sheriffs with eviction notices and too many foster homes. In the last eight years Gregory has spent a total of seven months in his mother's care. Last October he finally found refuge with foster parents who want to adopt him. But now his mother, Rachel K., wants him back.

The little person caught in the cross-fire of custody cases doesn't always have an opportunity to voice an opinion. But Gregory has made sure he'll be heard. No stranger to the legal system, he has gone out and hired his own attorney. When his case goes to trial on Sept. 24, he will become the first kid in America to sue to sever his ties with his natural mother forever. After years of misery and loneliness, Gregory is seeking a divorce.

In a campaign season dominated by debates over family values, Gregory's case could prove combustible enough to blow Murphy Brown off the political map. The image of a child suing his parents is a conservative's nightmare come to life-and a GOP strategist's dream come true. For months, Republicans have attempted to mine Hillary Clinton's legal writings for proof of a radical, antifamily bias (page 90); her critics have characterized her views as an attack on parental authority. Legal experts scoff at the idea that Gregory's case could pave the way for frivolous lawsuits--for example, by teens who bridle at turning down the stereo. Robert Mnookin, a family-law expert at Stanford Law School, suggests that this case is actually less revolutionary than it sounds--while Gregory may be the first child to hire his own lawyer, it is standard for foster parents to do so in the child's stead. Nevertheless, the idea of children taking their parents to court has struck a cultural nerve and raised troubling questions about the limits of such litigation. Should kids be able to shop around for a better deal? Do minors really know what's best? To what extent do their wishes supersede those of the parents?

The notion that young people even have rights comes as a shock to many parents. "Portable property" was Emerson's term for children, and most people believe kids do belong to their parents, body and soul. As a practical matter, the courts have tended to uphold that view. But in recent years, lawyers have won cases affirming the constitutional rights of children (page 88). It has become distressingly clear that all too many kids need such protection-they may be the nation's last second-class citizens. Nearly half a million children resided in foster homes last year, a greater than 50 percent increase since 1982; a growing percentage is being shuttled from one placement to another. If Gregory's story contains a moral, it is how deeply fractured the American family has become.

When Rachel and Ralph K. (because this is a juvenile case, last names have not been made public) got married in 1979, she was a 17-year-old high-school drop-out living outside St. Louis. Gregory arrived a year later, followed quickly by Jeremiah and Zachariah. Ralph took a powder when Rachel was pregnant with Zach. When Gregory was 4, Rachel allowed him and Jeremiah, 3, to visit their father in Denver for one month. November stretched into December, December into January. "I finally decided, in March, to go and steal them back," says Rachel. "I got Jeremiah but he wouldn't give me Gregory. I didn't get to see Gregory again for five years."

In 1988, Rachel moved south to Orlando in search of a better job. She left her two boys with her married sister to finish the school year. A couple of months later, she says, she was shocked to discover that her sister had turned the children over to the State of Missouri when she started having marital problems of her own; obviously, Rachel hadn't been getting weekly progress reports. The state contacted Ralph, who drove all three kids to Florida and tried to make up with Rachel. Within weeks, Ralph and Gregory moved out. Rachel says Gregory begged her to take him, but she was afraid of what Ralph would do. In a premonitory moment, Gregory filed a neglect-and-abuse charge against his father, and Rachel received custody of her oldest son.

For the first time in five years, Rachel had all her children. But she was earning only $2.15 an hour plus tips as a waitress and, with no child support, couldn't make ends meet. "First you lose the phone," says Rachel. "Then the electric." Then the kids, as it turned out. At the urging of friends, Rachel called the Florida Department of Health and Rehabilitative Services (HRS), which she says told her to place her two oldest boys in foster care while she got back on her feet. "I was crushed," she says. "They took my boys-and that was the most awful feeling."

Rachel saw her kids regularly over the next 11 months. Eventually, she found an apartment and a roommate, and convinced the state she was ready to take care of her boys. But the roommate didn't last. Two months after the kids moved in, Rachel once again fell behind on the rent and had to give up the apartment. When the boys had returned from foster care, says Rachel, "I promised them they'd never have to leave again-and I meant it. But here I was all over again. It made me so angry that the state was willing to pay a stranger $1,200 to care for my children, when if they could have just helped me a little, I could have kept my children. I was on my hands and knees to them, 'What do I do?"' There seemed little alternative: the two older children headed back into foster care. "I had to take Gregory down to HRS with his little suitcase," she says. "He handled it like a little man, but he didn't want to leave me." Before long, he landed at the state-run Lake County Boys' ranch.

Around the time Gregory moved to the ranch, local officials established a commission to study the state of children's services in Lake County. One of the members was local attorney George R., who visited the ranch last summer on a fact-finding mission. There he spotted a little boy in glasses, reading a book, who glanced up as the officials passed by. "I probably saw him for 30 seconds," recalls George. " For some reason, something struck me about that child. "The son of an alcoholic father, George came to realize that he saw a reflection of his own miserable, poverty-stricken youth in Gregory K. "I have to tell you, I have eight children of my own," says George. "I was not looking for another child. I am a rational person. I am not impulsive. But I couldn't get him off my mind."

George began asking questions about the little boy in glasses. A few weeks later, he and his wife, Lizabeth, came to visit. "We just fell in love with him," says George. "He's sweet, he's likable. He told us right from the beginning he wanted a home. You might have read in the media that he wanted to live with us because he thought we were wealthy. First of all, we're not wealthy. And secondly, he wanted to be adopted before he met us."

George and Lizabeth, both Mormons, started formal foster-parent training, and George began weekend visits. "On the second weekend," reports George, "Gregory said,'Am I going to come live with you from now on?'I said,'You mean as a foster child?' And he said,'No, I mean forever and ever.'I thought it was strange that after only two weekends, he would be asking me these questions. I said, 'You don't know if you're going to like living with us.' He stopped me and said, 'I do'."

In October 1991, George and Lizabeth became Gregory's official foster parents. According to George, Gregory was leading a happy and normal life at last. But before long, Gregory began peppering him with questions about adoption again. "Finally, one day he said, 'Don't you want to adopt me?"' recalls George. "I felt really bad. I told him that I didn't want to put him off, but I was afraid that if we got his hopes up, he might end up being disappointed. I told him, 'We want to adopt you, but it's up to the judge, and it's up to your parents'." During that time, says George, they never heard from Rachel by phone or mail. The family assumed an adoption would take place soon. "Then," George reports, "we heard that his mom and dad wanted him back."

Theoretically, there are safety nets to catch the Gregorys of the world. In an effort to keep kids and parents together, many states have implemented "family-preservation programs. " Social-policy experts believe that if a family in crisis receives intensive support and counseling, it will be able to weather the storm. Foster families are viewed as temporary havens for kids until they can be reunited with their parents or be put up for adoption. Most states have laws restricting the number of months a child can be kept in foster care; 12 to 18 months is typical. States assign both a guardian and a caseworker to shepherd the child during this time.

But in reality, the system has become nearly as dysfunctional as the families it is there to serve. "We now have a national emergency of child neglect and abuse," says Howard Davidson of the American Bar Association's Center on Children and the Law. There are "caseworkers with 50 to 100 families on their docket, and the entire network of child-protection agencies is on the verge of collapse." The crisis will only get worse: 1 million children may be in the foster-care system by the year 2000.

If Rachel had received financial support at critical moments, her family might never have broken up. But her story is far from unusual. Florida is in the top third o states in per capita income; but because it has no state income tax, it's at the very bottom in social spending on children. There are currently 11,300 wards of the state; child advocates say that two thirds of them have been in foster care longer than the 18 months permitted by law.

Two years ago attorney Karen Gievers filed a class-action suit against the State of Florida in an attempt to force improvements. Gievers had been involved in the case of six brothers and sisters who were scattered among five different foster homes; the three oldest had been wards of the state for 10 years, the three youngest for five. Officials supposedly were working to terminate parental rights, says Gievers, "but in 1990, the state decided that what was in the best interest of these children was 'long-term foster care'." She was so outraged, she took the agency to court. Last year she filed a second suit to prevent the state from eliminating its guardian ad litem program, which assigns guardians to foster children. In January, Gievers and the state reached a cease-fire agreement, in which the governor promised to phase in improvements in the foster-care system over the next three years.

Meanwhile, Gregory was falling through the cracks. Guardians are expected to confer with the child, present the child's concerns and desires during formal proceedings and then express their own opinion about the best solution. According to court records, Gregory's first guardian never met with him in more than two years. In May, Legal Aid attorney Catherine Tucker became Gregory's guardian. She has met with him and conducted her own investigations into the case, but says she's been hampered by a lack of funds." Determining whether someone's parental rights should be severed is no little motion taking 15 minutes," says Tucker. "My feeling is, if we consider this important, why not provide the resources to do the job?"

By this spring, the scene was set for a showdown between Rachel and George. When her children went into foster care for the second time, Rachel had signed a "performance agreement"--a contract with the State of Florida that required her to attend parenting classes, seek psychological counseling and evaluation, and prove that she was emotionally and financially stable before her children could come back. Six months into the contract, Rachel decided the best way to take command of her life was to return to Missouri and move in with her friend Steve. A new interstate performance agreement was drawn up, and Rachel was given until May 1992 to meet its requirements. According to Rachel's lawyer, Jane Carey, she thought she merely needed to fulfill her contract by the deadline to get the kids back; she didn't realize she was supposed to file interim reports and keep in closer contact with the boys. When she failed to keep state officials informed, they concluded she wasn't making progress and planned to terminate her parental rights at a May hearing. They shared those assumptions with the foster family.

Rachel's estranged husband, Ralph, was to prove a catalyst in the case. Long out of touch, he learned late last winter that his boys had re-entered the foster-care system. He requested an emergency hearing before a Florida judge; Rachel and Steve drove 20 hours straight to get there. During the March '92 session, the state granted Rachel permission to take Jeremiah home. By then, it was clear Gregory didn't want to go along. Just before leaving Missouri, says Rachel, "I got a call from HRS saying that the foster family had expressed interest in adopting Gregory. I said no. And I thought that was the end of it. When I got to Florida, one of the workers at HRS recommended that I call Jane [Carey] and ask that she be made my court-appointed lawyer. That got me scared--I didn't know why I was going to need a lawyer."

When he realized Rachel was not going to sign the adoption papers, says George, "I had my wife bring Gregory to my office after school and told him what was happening." As George tells it, "Gregory said,'l won't go back.'I calmed him down and told him that if the judge says he has to go back, he'd have to go back. He said to me, 'What can I say so the judge won't send me back?'I told him I was glad that he asked me that question, and that in my opinion, he is a citizen of the United States and that there are certain rights that citizens have: equal protection under the law; due process of law; access to the courts; the right to life, liberty and the pursuit of happiness. It follows, then, in my opinion, that he has the right to an attorney of his own choosing, and that he has the right to bring a lawsuit in his own name. He said,'Well, will you be my attorney?' And I said,'No, I can't do that.'. . . He asked,'Then who will be my attorney.?'I told him that I knew of someone, and I would give him the phone number but that he would have to make the call himself. I couldn't because I had already done more than HRS would be happy about." A few days later, Gregory phoned Jerri Blair.

Gregory's case pits two strong-minded women against one another, as well as two powerfully different views of a foster-care system gone awry. Blair is an Orlando litigator with a reputation for taking on high-profile juvenile cases on a pro bono basis. In 1989, she won a landmark decision involving a 15-year-old Florida girl who wanted to have an abortion without her parents'consent. She's also handled plenty of harrowing foster-care cases. "What I love about Gregory is that he's fighting back," she says. "He's trying to take responsibility for his life. I believe that for this child, the family can't be fixed. There is no relationship between him and his mother. He very much loves the people he's living with, and he feels that by going back to his mother, he would eventually be thrust back into the fostercare system again-without having the advantage of the kind of parents he has now."

Jane Carey, Rachel's attorney, has also devoted her career to doing the right thing. But after years of representing women on the edge, she takes the view that Rachel is as much a victim as Gregory. Carey argues that this case is about more than children's rights versus family preservation. It is also about rich vs. poor, two-parent families vs. single mothers, even black vs. white. Citing a shortage of adoptable white children, Carey charges that George picked Gregory out of a crowd of kids "like a puppy in a pet-store window. And that's not fair." She also believes that Rachel has the ability to turn around her life. "So many parents want their children, but they're not strong enough to do what they need to do," says Carey. "That's not true of Rachel. The system is not helping her, and now it's blaming her."

Like so many child-custody cases, Gregory's is bound to leave many people unhappy. Unlike most, however, he'll soon have his chance to shape his own destiny. In early July, Orlando juvenile-court Judge Thomas S. Kirk agreed to allow Gregory's suit to go forward, after ruling that the boy had the same constitutional right as an adult to protect his own interests. "That's never been done before," says Blair. "This child has been given the voice to free himself from the system." For George, the decision is a first victory for his family and, he believes, for Gregory. "This young man has more to lose or gain than anyone else," says George. "You don't need to be a mental giant to know when you're being abused or neglected, or that when you don't have contact with your mother for over a year, that you've been abandoned. I don't want to sound like a liberal radical, that all children should be able to pick their own parents. All we're saying is, is there anything wrong with listening to what one little child has to say?"

Children, however, may not always know their own best interests. In Chicago, a phalanx of lawyers recently waged battle over the rights of a 13-year-old who, like Gregory, wants to have her say. The horrific events at the center of the case make the court's ultimate decision especially difficult. In 1987, the girl's stepfather was convicted of aggravated criminal sexual assault against her. The girl was sent to live with her maternal grandmother. The stepfather served four years of an eight-year sentence. After his release, the girl was allowed seven unsupervised overnight visits with her mother and stepfather. But this spring, upon hearing that the parents were now denying the sexual abuse had even occurred, the child's court-appointed attorney, Patrick Murphy, demanded that the overnight visits cease. The child, who wants the visits to continue, two weeks ago won the right to her own attorney in the case.

Murphy was appalled by the decision. "Though I've spent a quarter century arguing for children's rights in the Supreme Court and every court on down, I think lawyers who argue that children are coequal with adults are doing children and families a great disservice," says Murphy, the Cook County public guardian. Yet the girl's position demonstrates how far children will go to preserve even pathological ties to their families.

Indeed, severing the parent-child tie is always considered the last resort. Rachel's lawyer, Jane Carey, believes that Gregory and his foster parents will not be able to meet the state's criterion-"clear and compelling" proof of continued abuse, neglect or abandonment-for terminating parental custody. Rachel herself is determined to fight on. "I feel like I did everything that people told me to do to get my kids back," she says. "I've had a lot of hardship and sadness. But I have a family, and Gregory is part of it. Whether he's angry or not, he's part of our family." Last June the court awarded her visitation rights, and she's driven down from Missouri twice to be with him.

But Rachel's case has suffered several major blows recently. Her husband, Ralph, from whom she is finally filing for divorce, has consented to the adoption. Late last week HRS added its voice to the chorus with a petition to terminate her parental rights. And a reported instance of domestic violence has buttressed Gregory's lawsuit, which claimed that Steve's criminal record makes Rachel's new home an unsuitable place to raise children. At 3:30 a.m. on Aug. 28, Zachariah, now 8, called the Missouri police to report that his mother "was being pushed down the stairs." When the police arrived and found Rachel bleeding and bruised, they say Jeremiah told them: "Steve did it."

Gregory has spent most of his life feeling unloved and unwanted. Now, two families are fighting to have him--a situation with a good deal of irony and, perhaps, a small measure of vindication for one lost boy. Soon Gregory will have his day in court. The national spotlight guarantees that, unlike the many juvenile cases rushed through the process, all sides will get a fair hearing. Whatever the outcome, it would be heartening if Gregory finally found his "place to be."