Tuesday, January 3, 2017

Child welfare in New York City: HORRORS!!! Some Family Court judges reportedly are behaving like – judges!

NCCPR's updated report on New York City child welfare
is available here.

New York City Mayor Bill de Blasio
I noted in a previous post that, when it comes to responding to the latest high-profile tragedy involving the death of a child “known to the system” in New York City, Mayor Bill de Blasio hasn’t exactly been a profile in courage, but at least he’s done better than others – notably Gov. Andrew Cuomo and a whole slew of mayor wannabes.

Unfortunately, the gap is narrowing.

De Blasio has found a way to claim credit for improved safety outcomes in New York City child welfare while blaming others for the failures. Unfortunately, the method he’s chosen fans the flames of foster-care panic.

It’s also at odds with reality.

The mayor now claims that Family Court judges “often” keep children in supposedly dangerous homes or return them there, over the objections of caseworkers and lawyers for the Administration for Children’s Services.

The first indication that this is b------t is the simple fact that, as noted in previous posts, child safety is improving. In fact, the key measures used by the federal government to assess child safety are at their best levels in at least six years.

In addition, on the three separate occasions over the past 20 years when this exact question has been studied in New York City, the findings were the opposite: Judges routinely rubber stamp needless removals – on one occasion judges even admitted it to a panel of national experts.

Rubber stamps or gavels?

● In 2000, Mark Green,the city’s first Public Advocate – and the only one to get child welfare right - issued a scathing report on how the Family Court deck was stacked against families. He found that families won on the merits only 1.6 percent of the time.  And that was not because ACS was 98.4 percent perfect.

● At about the same time, a panel of national experts created as a result of a class-action lawsuit settlement issued another of those reports worthy of words like “blasts” or “slams” in headlines. They were so appalled by what they saw in Family Court that they devoted a special section to it. Judges freely admitted to the panel that they regularly rubber-stamped removals even when they didn’t believe ACS made a good enough case:

The judges had much to say about their frustration with ACS for cases in which it lacks adequate preparation or fails to present a solid evidentiary case of abuse or neglect. Yet they acknowledge that they do not hold ACS accountable by refusing to grant their petitions in these cases. They felt that they could not risk making a mistake and having a child die; spoke of the withering media attention to decisions which turn out badly; and cited the lack of Court of Appeals support for insistence upon solid legal evidence for removal, noting the doctrine of "safercourse" that the higher court typically relies upon.
When we suggested that it sounded as though the weaker the case ACS presented, the more likely it would be to prevail (because judges would be especially afraid that something bad was going on in a home when they couldn't get clear information), several judges nodded. Such practice lowers the standard of accountability to which ACS ought appropriately be held, and comes frighteningly close to abdicating the Court's basic responsibility to protect the rights of children and families. [Emphasis added.]      

But hey, that was in 2000. It’s not like that now, is it?

Yes and no.

The mayor seems to want Family Court Judges to wield
rubber stamps ...
There certainly have been improvements. For starters, in 2004 the state’s highest court, the Court of Appeals rejected the so-called “safer course” doctrine,* in part because it recognized that given the inherent harm of removal and the risk of abuse in foster care it isn’t necessarily safer.
In a unanimous decision, the court wrote that “the term ‘safer course should not be used to mask a dearth of evidence or as a watered down impermissible presumption.”

More important, the city now contracts with institutional providers of high-quality legal representation for families – but only for about half of all cases. (All children have had their own lawyers for decades – and that’s in addition to the ACS lawyers.) The improvement in family defense is thanks in part to the panel and its report, and in particular to John Mattingly, a panel member who went on to run ACS. (I’ve often criticized Mattingly, but he deserves credit for this.)

These providers don’t “get bad parents off.” Rather, they point out when ACS has not done all it could to keep a family safely together and they come up with better, safer alternatives to the cookie-cutter “service plans” often churned out by ACS. This story, from The Nation, describes how it works.

So yes, there’s been some progress.

“We practice New York Post” law”

...instead of gavels
But in 2007, when anthropologist Tina Lee spent more than a year embedded in the New York City
child welfare system, doing in-depth research, interviewing parties on all sides, observing cases in court, etc. she found things had not changed nearly enough.

Lee observed initial hearings in 60 cases. “In only two cases,” she writes in her book, Catching a Case, “did the judge find that a removal was unwarranted.”

And the reasons hadn’t changed much, either.  She quotes a private attorney for families who told her:

Certainly, they wouldn’t tell you for attribution, but if you were to ask my colleagues  what … motivates judges, they will tell you quite frankly that we practice New York Post law, and what that means basically is that no judge wants us to let a kid go home and see his name in the tabloids the next day that a kid got killed or maimed badly because of a decision he or she made.

Lee writes that this, plus overloaded court calendars, plus the fact that judges are appointed – or not – by the mayor

Create a situation in which judges have little incentive to challenge ACS when they seek to intervene in families…

Now, it’s been another decade.  Have things gotten better? I certainly hope so. I hope that lawyers for the Bronx Defenders no longer are heckled by other attorneys just for actually advocating for their clients at initial hearings, as Lee found in 2007.

But the mayor seems to want to turn back the clock all the way to the worst excesses of decades ago. He practically said as much.

The mayor seems to have gotten the blame-the-judges idea from an ACS lawyer who whined about not always getting his way during the mayor’s weekly segment on WNYC Public Radio’s Brian Lehrer Show. The mayor rushed to agree. 

I think that it is pretty damn clear when all other alternatives have been tried, and ACS believes it’s time to take that step [to remove the child] even if it’s a radical step, I believe the benefit of the doubt should go to ACS and the work they’ve done.

But when ACS wants to remove a child from the home ACS always claims that “all other alternatives have been tried” – if ACS said otherwise, ACS would be admitting to violating both federal and New York State law, which require “reasonable efforts” to keep families together.

Does the mayor really think there are times when the ACS lawyer stands up in court and says “Why yes, your honor, there are alternatives to taking away the child that we haven’t tried, but we want you to tear apart this family anyway”?

So what the mayor is really saying to judges is: Put away those gavels, bring back the rubber stamps and do exactly what ACS says whenever ACS tells you to do it.

An odd stance for a “progressive” mayor

The mayor’s demand is still another example of how depressingly easy it can be to get many of my fellow liberals turn their backs on everything they claim to believe in just by whispering the words “child abuse” in their ears.

Can anyone imagine this mayor saying that every time police stopped and frisked someone it was because they had used every other alternative and there was simply no other way to protect public safety? How about every time the police used deadly force?

Lauren Shapiro, director of family defense practice for Brooklyn Defender Services appeared on the Brian Lehrer Show the next week to respond. But the next day de Blasio was at it again declaring that there are

many situations where ACS wants to remove a child from the family and a judge may not agree. …  ACS often wants to be more aggressive than a judge allows it to be.

Neither the mayor nor the whining lawyer from ACS offered any actual statistics.  Everything we know says the claim is false.

As for simply giving ACS the benefit of the doubt, the Court of Appeals rejected that idea – for
good reason. The court declared:

The plain language of [state law] and the legislative history supporting it establish that a blanket presumption favoring removal was never intended. The court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child's best interests. [Emphasis added.]

When courts do that it creates more work for ACS lawyers. But it also makes children safer.

*The decision was an outgrowth of a federal class-action suit, Nicholson v. Scoppetta. NCCPR’s Vice President, Carolyn Kubitschek, was co-counsel for plaintiffs in that case.