After five years, two wins at Oregon Court of Appeals, mother still in court over custody of her daughter
David Jaques, The Roseburg Beacon
The saga of Ajay Pichette, the single mother who battled the state of Oregon for more than four years for the return of her daughter Nakota (Kota), winning twice in the Oregon court of appeals, continues as she was taken back to court earlier this month defending against a claim for custody and visitation by the former state appointed foster parents, Douglas County Sheriff’s Deputies, Mike and Kim Root.
The nightmare, as Ajay defines it, all began back in November of 2007, when five armed officers entered her mother’s home in Curtin, where she was staying, and stripped her seven week old baby, Nakota Ruth Eckel from her arms. The 18-year-old single mother, Ajay Eckel (now Pichette) described the scene that night as “chaotic and terrifying”.
Neighbors of Ajay’s mother, Kathy Perry, had apparently called 911 due to a disturbance at the Perry residence involving Ajay’s older brother Jared, who was allegedly at the time, under the influence of a controlled substance, and who brandished a firearm. Jared was arrested and taken into custody.
Then as the officers continued their investigation, they came into the house, and Ajay says “told me they needed to take my baby”. She said “When I asked the officers why, they wouldn’t tell me a reason.”
Ajay was not charged that night with any crime, nor in the ensuing four plus years of her battle to get her daughter back has she ever been charged with a crime.
That November night, back in 2007, a frightened mother cried throughout the night wondering what she could do to get her daughter returned to her.
As she began to navigate through the child protection system in Oregon she learned that the Department of Human Services had alleged that her mother’s home, where she and her baby girl lived at that time was “below community standards”. In documents later submitted to the court, social workers alleged that they discovered a “bottle of spoiled milk” that had fallen beneath the crib, and a pervasive odor of animal waste could be detected. They asserted as justification to take the child away from her mother that the “mother has no other resource for safe housing for herself and her child”.
For complete details on the early case from 2007 through 2010 read the Beacon article; A Mother’s Worst Nightmare, dated June 23, 2010.
During numerous court appearances, represented solely by her court appointed counsel, Kareen LaValley, Ajay defended herself against a formidable array of Oregon Justice Department attorneys, attorneys representing the foster parents Mike and Kim Root, and court appointed counsel to her daughter Kota, as well as a score of DHS case workers, clinical psychologists, drug counselors, and Douglas County Deputy District Attorneys.
The Beacon attended numerous court appearances over the past several years as the state continued to press their case for permanent removal of Kota from her mother’s custody. At no time during any of the proceedings, nor in court documents filed by the state, did they ever charge Ajay with abuse of her daughter, neglect, nor any violation of Oregon law. Ajay has never been a substance abuser, though she admitted to trying marijuana on a couple of occasions, more than four years ago. Even so she was ordered to be evaluated for substance abuse and has never failed a UA in the past four years.
Judge William Marshall , even though he admitted to Ajay’s attorney, Kareen LaValley, to having a past “working relationship” with the state appointed foster parents, Deputies Mike and Kim Root, did not recuse himself from hearing the case. Marshall ultimately ruled against Ajay in a decision issued July 13, 2010, in which he directed Oregon DHS to terminate the mother’s parental rights within sixty days.
At the time of the proceedings Judge Marshall’s wife also acted as a supervisor to one of the mental health nurses assigned to Ajay.
Pichette said that at the time of Marshall’s decision, she was not surprised by his ruling given his demeanor in court, and what she perceived as a prejudice in favor of his former colleagues from the Sheriff’s department.
In Marshall’s written decision he used phrases like; “She [Ajay] was observed to be detached from the child…” and that Ajay had “not sufficiently bonded” with Kota. This opinion from Marshall appeared to be based almost exclusively on the sworn testimony of DHS case worker Corey McGovern and other DHS staff who offered as examples of detachment, instances which occurred during supervised visits, most of which were conducted in state offices over a period of two years of separation of a mother from her child.
Ajay testified in court that she was usually “pretty stressed out” during these controlled visits with her daughter, because they were always critical of her response to her daughter. McGovern alleged that once she observed Ajay pinch Kota’s leg when trying to strap her into her car seat.
McGovern was questioned in court by LaValley about her distant family connections with the two Sheriff’s Deputies. She did not provide any details. McGovern did however state in court that she didn’t want Kota returned to her mother. Kim Root also indicated to the court she would like to permanently adopt Kota.
Marshall’s decision was overturned in an October 19, 2011, Oregon Court of Appeals ruling, in which the court ordered that the child be returned to her natural mother. This was the second case in which the mother prevailed against the state of Oregon.
Almost immediately DHS filed another petition with the court to prohibit Kota’s return to mother. This time the case was to go before Judge Randolph Garrison, the presiding judge in Douglas County.
The proceedings started with an unusual twist, as the two Sheriff’s Deputies, Mike and Kim Root, believing the state did not adequately represent their ‘interests’, filed a motion with Garrison to be allowed intervener status in the state’s case. The Roots hired their own legal counsel for this filing, TK Law of Roseburg, represented by Kathryn Kosstrin, and Anthony Griffin. Garrison ruled in favor of the Roots and granted them intervener status.
This case had by now drawn a great deal of public attention, and State Representative Tim Freeman, who had begun to put pressure on the State DHS Department to get fair treatment for Ajay, appeared in Judge Garrison’s courtroom to hear the arguments first hand.
During the proceedings Kim Root told the court she didn’t want Kota to go back to her mother Ajay, even if the Roots didn’t get to keep her.
After several days of lengthy proceedings, and emotional testimony, Judge Garrison issued his ruling. He was reluctant to return Kota to her mother, but he told the court the termination of the state’s custody and jurisdiction was clearly over; “That door was slammed shut by the Court of Appeals” said Garrison. He told Ajay that “your refusal to let people in is an effort to hide something” and that “you’re under the microscope now, I’m sorry but that’s your lot in life.”
He reluctantly concludes “I’m very sorry to have to do this it’s not what I want to do…um…I think this kid is better off , in my personal opinion, with the Roots.” Garrison then told the parties that Kota would be returned to her mother and that DHS would remain in custody while “transfer to mother’s home shall be made through a plan developed by the parties, gradually over a period of time.”
Even after the judge’s order, DHS, according to LaValley, did not respond in developing the plan, which forced LaValley to file another motion with Judge Garrison, compelling DHS to comply with the court order.
Finally after four and a half long years, Kota was returned to her mother on January 15, 2012. And just when it seemed the family could now begin their life’s journey together, the Roots filed suit in civil court seeking to undo, not one, but two appellate court decisions along with Judge Garrison’s decision to return custody of Nakota to her natural mother.
This move by the Roots left Ajay and Nakota without legal counsel because it was a civil case which leaves the respondent unable to receive a public defense attorney.
A legal defense fund was established for Ajay and Nakota, and Rahn Hostetter, an Attorney from Enterprise Oregon, agreed to represent them.
The Civil Trial
The selection of a judge to hear the civil case became problematic, considering Judge Bill Marshall had already been overturned on appeal, and virtually all remaining Douglas County Judges recused themselves, due to potential conflicts of interest.
In the end, Judge Lindi Baker, a Josephine County Circuit Judge was selected to hear the case. The trial began on October 09, 2012. The proceedings lasted two days.
Hostetter , in his opening remarks said that there is a presumption in Oregon law that “Ms. Pichette [Ajay]acts in the best interest of the child.” He continued that the evidence in this trial will show she is entitled to this presumption due to “the obstacles she’s endured with patience and humility.”
He said that in previous cases, the state asserted that there was insufficient bonding between Ajay and her daughter. “The bonding is now done and there will be no evidence to the contrary,” adding that; “It’s ridiculous to even consider taking her child from her again.”
Hostetter concluded his opening remarks informing the judge that “Ms. Pichette has decided that visitation is not in the best interest of her daughter.”
Kathryn Kosstrin, attorney for the Roots, called as her first witness Mike Lander, of Associated Buyers, a Roseburg area Pawn Shop, and father of Kim Root. During Lander’s testimony he referred to Nakota as part of his family. “From the first time she came into the family…” said Lander there were some special needs” referring to Nakota adding there was an apparent “lack of bonding.”
Lander told how Kota would come and spend the night “quite often” and that in the mornings “she was up doing chores.” Kota was between three and four years old at the time.
Kosstrin called Mike Root, Douglas County Deputy and Jail Commander, as a witness. Kosstrin asked him if there was ever a time he told his foster kids to call him dad. Root replied “No.” Root told Kosstrin in response to her question as to the timing of their filing that he didn’t know when he and Kim filed the custody suit for Nakota. On cross examination Hostetter asked Root; “wasn’t it true that you filed this action right after the first visit you had [with Nakota]?” Root; “Yes.”
Kim Root took the stand and testified on the subject of who Kota’s parents were that “I told her she had two moms.”
Hostetter asked Kim if she had stopped rooting for Kota to go home to her mother eventually; Kim Root; “Yep I did.” Hostetter; “You let her call you mom?” Kim Root; “Yes I did.”
When Ajay took the stand she described the day Kota was finally returned to her after the four year ordeal with the state; “It was the best day of my life”. Hostetter asked Ajay what Kota’s demeanor was like when she came home. Ajay said at first she was very confused because Kim had told her she wasn’t going to stay. “She had been told she was going back to them [Roots].“
Ajay told the court that Kota referred to herself as a “tangled Rapunzel” and Kim as “the evil witch who had taken her away.”
In his closing remarks Hostetter said “this chapter should be closed once and for all to the joy of almost everyone.”
Kosstrin accused Hostetter of stating the relationship with the Roots “was forced upon Nakota… and while this may be factually true, this is her family [referring to her clients the Roots] the only family she remembers.” She also stated on the record “Her apparently super-mom, biological-mom now knows what’s best.”
Judge Baker said she would take the matter under advisement and notify the attorneys of her decision.
The Ruling That decision came more than sixty days later on November 15, 2012, in the form of a ten page written opinion letter. In her letter she writes that the “respondent (Ajay) concedes that the petitioners (Roots) have established a child-parent relationship.” Ajay Pichette, when asked, said she did not make any such concession .
Judge Baker also wrote that “the testimony of the Roots was very credible” and that the “Court is absolutely convinced that they love Nakota…”
In her opinion letter Judge Baker advised the parties that custody would remain with Ajay Pichette, Nakota’s natural mother, but that she would award the former foster parents visitation rights.
On May 2nd 2013, Zachary Hostetter, an attorney with Hostetter, Knapp, LLC, the son of Rahn Hostetter, appeared in Douglas County Court on behalf of his client, Ajay Pichette, who remains opposed to any visitation with the Roots. Kathryn Kosstrin appeared with, and on behalf of, her clients Mike and Kim Root who are still pressing for the visitation order to be finalized. The end result is a visitation plan ordered by Judge Baker, which is very similar to a shared custody or visitation plan ordered in a divorce proceeding. The key components of the plan would grant the Roots visitation with Kota; every other month for one weekend, one full week per year in the summer, and Easter holidays every other year, until she is eighteen years old. Ajay remains very concerned about the effect this will have on her daughter, who has now been back home with her mother and two younger siblings for the past fifteen months. According to Ajay, Kota has told her mom she wants nothing further to do with the Roots and that she knows they are trying to “Kidnap me from you, and I won’t let them.”
Ajay said she has never discussed the impending visitation case with her five year old daughter, but that she picks up bits and pieces listening to one end of her phone conversations with her legal counsel.
Ajay says she is also concerned that the judge allowed that the Roots may send surrogates of their choosing to pick Kota up at Ajay’s home in California for her visits, and that they can take her to any state as part of their visitation. They would have to get Ajay’s permission to take her out of the country.
The order also allows the Roots to communicate with Kota via phone call, and possibly e-mail and text messaging, even though the five year old isn’t reading yet. Judge Baker has not issued her final decision or entered an order on the stipulated agreement between counsel representing both sides. Hostetter did say that a possible appeal to the Judge’s final order cannot be ruled out.
Meanwhile Ajay says that Kota is very happy and getting all A’s in her kindergarten class and is very close to her brother Liam and sister Lilly. “I worry what this visitation order, if enforced, might do to her” said Ajay, “especially since she’s told me she doesn’t want to see them anymore.”
Kareen LaValley, Ajay’s public defender against the state’s case, told the Beacon; “I have never in my life seen anything like this.” Those familiar with child custody law and the foster parent system believe this may be the first case in Oregon history where a former foster parent has sued for custody or visitation against the natural, biological parents. If the decision stands it may set a new precedent, and establish a new vulnerability in parental rights in Oregon.