Samantha Maria Mungai, 26, knows she made a mistake the night she left her four-year-old daughter alone in their Gladstone, Missouri, apartment to go to work the night of July 13, 2017, resulting in a court decision that found her guilty of negligence.
"That’s fair. I understand it," she said, weeping quietly. "It's not like I just wanted to leave my child alone, I felt like I had no other choice. I just wish I could take it back."
Just after 10 P.M. that evening, police were called to a neighboring apartment, where the little girl had knocked on the door, looking for her mom. Police documents indicate the neighbors called the Clay County Children’s Division when they couldn’t locate Mungai, and the little girl was taken into protective custody.
That was the last time Mungai lived with her daughter. She hasn't seen her for almost a year and a half. The Clay County Circuit Court issued a Termination of Parental Rights, or TPR, order in September 2019. At the time, the child had been living with a foster family for almost one year. Two months ago the family legally adopted her.
Mungai said she will always regret the decision she made that summer night but she felt she had no other choice, she felt trapped.
"I was scared of being homeless, we'd just started getting on our feet," she said.
The color of justice
Parents of color and those who are low-income are at a significantly higher risk of being investigated for abuse or neglect, and losing their children to the child welfare system.
Research shows that in Missouri, Black parents have roughly double the risk that white parents have of losing their kids to the child welfare system.
In Kansas, that disparity is even higher.
"Nationally, about 2%, or one in 50 black children, can expect to experience TPR over the course of their childhood, so that’s incredibly common," said Frank Edwards, a sociologist at Rutgers University who studies race and child welfare.
Nationally, Black children are at a 50% risk of being investigated, compared with about one in four white kids.
Mungai’s adult years were marked by unresolved family conflicts and a decision to voluntarily give a child up for adoption.
Advocates say she also had another strike against her. She’s an immigrant. Studies like this one from Yale indicate that immigrant parents are often caught between their status as immigrants and parents, and that the constitutional rights of immigrants are frequently discounted in child custody cases.
Mungai said she came to the United States with family members on a visitors visa. She obtained legal status under the Deferred Action for Childhood Arrivals, or DACA, program. But when it expired, she didn’t have the $800 to immediately renew it. She was arrested after one of her TPR hearings in Clay County, turned over to immigration authorities and placed in detention for three weeks.
Some Kansas City attorneys took her case on a pro bono basis. Immigration attorney and activist Jessica Piedra says there are questions about how Immigration and Customs Enforcement (ICE) authorities received information about Mungai's child welfare case.
"In her ICE file, when we got the file from the bondsman, there were documents regarding the Children's Division case, and that is highly irregular," Piedra said. "Usually, ICE would only have things in a criminal proceeding, not in a civil case."
The Clay County case worker who first visited with Mungai the morning after her daughter had been taken into protective custody has since left the office. She agreed to speak on the condition of anonymity but said she’s still haunted by the many obstacles she feels made it almost impossible for Mungai to be reunited with her daughter.
"She jumped through so many hoops," the case worker said. "She had a red flag because she was Black, she was lower income, an immigrant, and a stripper, a line of work people judge. We failed her, the system failed her."
On Sept. 24, 2019, after more than two years of Mungai trying to meet a long list of requirements, court hearings, team meetings and tests, Judge K. Elizabeth Davis of the court's family division entered a judgment that Mungai was unable to provide a safe and healthy home for her daughter and that it was not in the little girl's best interest to be reunited with her mother. Termination of Parental Rights hearings were initiated.
Fighting for her daughter
After the July, 2017 incident, Mungai's daughter was immediately placed in an emergency foster home. She had weekly one-hour visits with her daughter in a designated room at the children’s division that were recorded by officials and observed through a two-way window. A year later, Mungai’s visits were extended from one to three hours.
Documents obtained by KCUR indicate that Mungai was making progress toward meeting the requirements to achieve the goal all had agreed on: reunification. A handwritten case report dated July 11, 2018 — a year after the child was removed from the home — noted, “(Mom) moved into apartment… (is) adjusting well…(she is) working…visits (with her daughter) goes well….approved for Food Stamps.”
Four months later, Mungai called in from work for her regular team meeting and was shocked to hear Juvenile Officer Heather Kindle announce she was changing the goal from reunification to TPR — Termination of Parental Rights.
"Everyone went around and gave their update, no one brought up TPR," Mungai said. "It got to Heather Kindle. Her exact words were, ‘This isn’t going anywhere, I’m going reach out to my lawyer to talk about TPR.' Meeting ended. That was that.”
In notes from a different document, Jaclyn Pfeifer, Mungai’s Clay County case manager, identified several concerns and a lack of reasonable progress toward meeting goals. According to Pfeifer, Mungai hadn’t been present for visits with her daughter for two months. By the time the case was complete she’d missed a third of almost 100 scheduled meetups.
Mungai explained that she'd had another baby, knee surgery with a complicating blood clot and had moved across the state line to Kansas — making transportation to Clay County more of a challenge.
Officials said she hadn’t provided documentation that she needed bed rest following her surgery, that she had an outstanding warrant for a Kansas City traffic violation and that there was an investigation into a domestic violence incident at her home.
Mungai recalled that while "bed rest" may not have been explicitly spelled out, her nurses made it clear she wasn’t to move around following her surgery. The traffic violation warrant was ultimately thrown out by the prosecutor, according to municipal court records. And she was working closely with KVC, a Kansas nonprofit that provides parenting support, to separate from an abusive relationship.
Nonetheless, a TPR court date was set for April 2019.
In a phone interview with KCUR, Judge Davis explained she could not discuss particulars of the case, but in general said she recognized the weight of TPR orders. She said she carefully evaluates all arguments before making a judgment, understanding the lifelong implications of forever separating a child from a parent.
In this case, she signed a TPR order on Sept. 24, 2019.
Mungai and her attorney appealed but the appeals court affirmed Davis’ ruling. They made one last attempt to challenge the order in the Missouri Supreme Court, which declined to hear the case.
It has now been a year and a half since Mungai last saw her daughter, who recently turned eight years old.
Mungai's family's request for custody
Before Judge Davis issued the final TPR order, Mungai’s first cousin came forward to say she and her husband, who live in Platte County, Missouri, wanted to adopt the child. Because the TPR case wasn't final, Mungai recognized that placing her daughter with family might be her best chance of maintaining a relationship, so she agreed.
Eddah Malicoat and Mungai were close growing up. They spent time with their grandmother in a rural community outside of Nairobi, Kenya.
“Every holiday, summertime, our parents would take us to (our grandmother’s) house. We called her CuCu,” Mailcoat said, pulling out a faded photograph of the extended family on their grandmother’s farm in Kenya.
“All the grandkids would be there. [Samantha], me, my brother, our other cousins were all there," she said. "The thing about (this case) is, it’s not just Black culture, it’s African culture. All us cousins are considered like a nuclear unit."
Malicoat said that when she learned her cousin's daughter was in the custody of the state, there was no question she would take her in.
Missouri law gives preference to family in child welfare cases when it is determined that "placement with relatives is not contrary to the best interest of the child."
By the time the Malicoats came forward, the little girl had been in the custody of a second foster family, a white couple, for about five months. The biological family went through months of training and verification as a potential adoptive resource, even engaging in mediation with the foster couple, according to state records.
But in the end, the court decided it was in the child's best interest to remain with the foster family, where documents indicate she was adapting well.
The Malicoats were permitted monthly visits at the discretion of the foster family, who decided after a story appeared in the Kansas City Star to end visits.
In January, Judge Davis ruled that the foster parents could adopt Mungai's daughter, giving them power to decide if and when any family connection would occur despite documentation that included worrisome details recording the child's despair about not fitting in.
The Clay County case worker wrote of "a healthy bond/attachment with her foster parents," the report stated. "(The child) has been struggling with fears and worries about what her future will look like ... a mixture of anger and frustration toward Maria (Samantha) Mungai and stress about permanency. She has used language like she hates herself and that no one is like her. (She) recently grazed her finger over a knife giving herself a paper sized cut. She reported to her foster mother that she did this on purpose because she hated herself and wanted to die."
After repeated attempts by KCUR to reach the adoptive family, their attorney, Karen Rosenberg, requested via email that KCUR not use the family's name or that of the little girl. The request "portrays parents who do not want their daughter's history of abuse and neglect, and trauma, to be on public display. My clients have always and will continue to do what is in (their daughter’s) best interest and welfare,” Rosenberg's response stated.
Reconsidering TPR
Each child welfare case is defined by its own circumstances, and because of the enormous discretion given to family court officials in defining goals for a family, it is not uncommon for there to be disagreement about what is in the best interest of the child.
“The law, as far as juvenile cases, is not clear cut," said Clay County supervising juvenile officer Janet Rogers. "They’re not like criminal cases where you can say, 'Well, you’ve proved it, here’s the sentence, off to the department of corrections.' (These cases ) are very subjective, we put recommendations in front of the judge, sometimes she takes them, sometimes she doesn’t."
Mungai, her cousin and their advocates said they will always have questions about the timing and adjudication of the case.
But Rogers insisted the process was fair to everyone.
“Everybody had a voice and everybody got to speak up. I know people may not feel like they were heard or listened to if it didn't go their way and I completely understand that. But, the fact of the matter was, everything was taken into consideration. I know it was."
But those who work in and study the child welfare system acknowledge that without more investment in child care, affordable housing and jobs, the most vulnerable parents — disproportionately women of color — will continue to permanently lose their children to the system.
Laurie Snell, a juvenile and family court attorney for more than 20 years, said current policies work against these parents.
“You’re a good person, you made a mistake but you can’t climb out of the hole you’re in and there’s nobody there to give you a hand to help you out of it so that you can get to ... reunification,” she said. “The sad thing about termination cases is that parents are doing the best they can, but the trial courts are able to say it doesn’t matter.”
Snell is part of a growing movement of attorneys, policymakers and scholars who are looking at the child welfare system with a critical eye.
"The history of separating Black children from their families goes back a long way," said Edwards, the Rutgers sociologist. "It was common practice to separate enslaved children from their parents. Racism is (still) at the center of how we think of about who is a good parent, a deserving parent, a dangerous parent. “
The issue of TPR , and particularly its impact on families of color, is coming under increasing scrutiny in the press, in academic and policy circles, and as a social justice issue.
Child separation policies, often now referred to as a “civil death penalty,” are today receiving the same kind of critical scrutiny that capital punishment and the separation of children at the border have received in connection with the country's reckoning over racial justice issues.
Child welfare attorney Laurie Snell noted that when children were being ripped from their mothers at the border, there were outcries that it was antithetical to our values as a country.
"Look in the mirror," she said. "That's what we're doing every day with TPR, without giving moms a substantial chance to reunify if it can be done safely."
