When injustice hides in plain sight

The New York Advisory Committee to the U.S. Commission on Civil Rights is examining racism in the New York family policing system (a more accurate term than “child welfare” system).  New York’s institutional providers of family defense prepared in-depth written testimony that is a report in itself.

As I read it, I had to stop every few pages.  Just reading the first-hand accounts of soul-crushing injustice visited upon overwhelmingly poor nonwhite families was tough.  Yet these families have to live it every day.

I’ve excerpted part of one section below – the section on what, in New York, is called the family court.  That’s not because the injustices chronicled in that section are worse than the rest – but they are easier for the rest of us to see for ourselves.

Anyone in New York – especially any journalist -- who doesn’t believe what these lawyers are telling us can head for the family court in their borough or county and watch.  For more than 25 years in New York State, by order of that state’s highest court, the Court of Appeals, these hearings have been open.  

Unfortunately, New York reporters almost never take advantage of this opportunity.  In fact, in 2011 a New York Times reporter started showing up just to see what would happen and was repeatedly turned away.  Judges and court officials either never knew, or forgot, that the hearings were supposed to be open.  The Court of Appeals had to send them a reminder. 

So now might be a good time to put the judges to the test again – and this time, stick around to see the injustice that’s been hiding in plain sight. 

And not just in New York.  In large part because of the work of New York’s family defenders, at least in New York City the system is one of the least horrible in America.  Wherever you are, it’s probably even worse.  And if where you are happens to be Texas, Florida, Michigan, Missouri, Washington State, Oregon, Colorado and, for media only, Illinois, you can go see just how awful things are.  Admittedly, in some of these courts it may take time before an observer can see the difference in how Black and white families are treated – because it may take awhile before you see a white family in these courts. 

Meanwhile, here’s some of what New York City’s family defenders see every day.  And here’s something else to think about as you read it:  

One of New York’s, indeed the nation’s, most important, and bravest, anti-racist voices in the field, Angela Burton, was fired from her job with the New York State court system after she submitted an outline of remarks she planned to make to a meeting of the New York Advisory Committee.  Her bosses felt her remarks would “undermine public confidence in the court’s impartiality.” 

EXCERPTS FROM THE WRITTEN TESTIMONY OF NEW YORK CITY FAMILY DEFENDERS [Emphasis added.] 

The structure and practices of family court and the laws family court judges apply harm families and act as a force of destruction to Black communities. Too often family courts rubber-stamp the decisions of the family policing agencies, and fail to function as the intended check on the system. … 

From its failure to follow governing laws and ensure due process, to its prioritization of expediency over fairness, humanity, and just outcomes, the family court functions as an arm of state power, rather than a neutral arbiter of fairness and justice. … On a regular basis our clients face the following harms and disregard for their humanity and dignity in family court:  

1. Being called by generic labels like “mom,” “birth mom,” “dad,” and “paramour,” instead of by their actual names, and the use of other dehumanizing language;

 2. Having cases scheduled and called with no regard whatsoever of the parent’s schedule, obligations, or the arduous demands of court ordered services; 

3. Experiencing the other players in the system insensitively laughing, joking, rolling their eyes, and making light of the proceedings in total disregard for the profound impact the proceeding is having on them and their family; and 

4. Being subjected to the reliance on tropes and narratives deeply rooted in this country’s history of anti-Black racism, classism, and other forms of structural oppression. 

From the moment of a parent’s first contact with the family court, the system dehumanizes parents and families and deprives them of the opportunity to be fully heard. While family investigations go on for days, weeks, or even months prior to the filing of allegations in family court, parents are typically unable to meet their defense counsel until the day the petition is filed (sometimes even on the second or third appearance) and often only moments before a family is called before the court for the first time, … 

There is no legal obligation for [the Administration for Children’s Services] ACS or prosecutors in family policing cases to provide exculpatory or exonerating evidence. This results in presentations to the court that are extremely one-sided, resembling a diatribe making a case against a parent without the balance that could give the court an accurate picture of the family. 

The unnecessary and inexplicable, and in our view intentional, delay in providing information is so normalized in the courts, that we are greeted with astonishment when we propose that we receive the information earlier. 

Time and time again, we have seen cases with similar facts have vastly differing results, with the only measurable distinction between the families being the color of the parent’s skin. For example, when allegations of neglect relate to a one time incident of excessive corporal punishment, white and Asian children are more likely to remain at home with their families, while Black families are consistently separated, with the court relying on racist tropes that the parent is “angry” and unable to control their actions. The data also supports our observations in court, showing that although the percentage of reports leading to [court] filings for Black parents and Latine parents are similar, the reports made against Black parents are 50% more likely to result in removal than those made against Latine families. 

From their first appearance in court, Black families are not looked at holistically, and are met with suspicion and contempt. For example, expressions of emotion by a Black parent whose children are being torn away are often viewed by both the court and caseworkers as evidence of a larger mental health or anger issue, consistent with racist perceptions and tropes about Black people—rather than recognizing an emotional response to family separation as fundamentally human. 

A parent who is deferential to the agency and the court – who is “polite,” easy to work with, and who expresses “insight” in terms that they admit full wrongdoing – is more likely to have a swift and favorable resolution. In contrast, a parent who expresses emotions about the separation of their families, who questions unreasonable directives from the agency and court, and who raises concerns about the care their child receives in the foster system, will often be viewed as “angry,” “difficult,” “non-compliant,” and “lacking insight,” which will delay reunification and progress in family court. 

Prosecuting attorneys attend court conferences intended to discuss settlement and visitation completely unprepared, without settlement offers or positions on expanding visits or other plans for achieving reunification. Cases with extremely weak allegations often unnecessarily take months or years to resolve, and then only after attorneys for parents force the agency’s hand by filing motions to compel discovery or to dismiss. The ACS attorney will then often withdraw their petitions or offer a very short adjournment in contemplation of dismissal, ultimately subjecting families to months or years of unnecessary surveillance and family policing involvement. 

Prosecuting attorneys regularly fail to provide discovery until the eve or day of trial, making it difficult, if not impossible, for defense counsel to advise parents about the potential risks and consequences of settlement, or to be prepared to move forward with trial. Parents regularly take off work to appear in court for a fact-finding hearing, only to find out that the ACS attorney failed to subpoena a witness or essential records, or is simply unprepared to move forward. Adjournments are liberally granted by the court in these circumstances, despite the ACS attorney’s lack of diligence. The resulting delays subject families to needless separation, unnecessary surveillance and stress, and demonstrate an utter disrespect for families. 

While these delays are intolerable and grounded in a racist disregard for the time and well-being of Black and Latine families, the family court’s efforts to address them also often display the same racist disregard. For example, while adjournments are repeatedly granted to ACS, a parent’s request for an adjournment, no matter the basis, is routinely denied. A parent’s absence will lead to an immediate default, which carries with it negative legal consequences, while the court will grant multiple adjournments when the ACS worker is repeatedly absent, even when their participation is essential. 

[O]ften, Black parents are treated across the board with greater skepticism and distrust. Courts question the intentions of Black parents, their love and commitment to their children, as well as their willingness and ability to follow court orders while white parents are generally given the benefit of the doubt and trusted to overwhelmingly have good intentions and stronger protective capacity.   

INDEFENSIBLE: Here’s the real message from a child welfare system in Upstate New York: 1. We’re supremely arrogant. 2. We hate accountability. 3. We want to stay that way.

Given a chance to replicate a model family defense program with a proven track record for reducing needless foster care, improving child safety and saving taxpayers money – at no cost to the county – metropolitan Rochester said no.

UPDATE, NOVEMBER 2023: Metropolitan Rochester now has a better class of politician.  They've accepted the grant and the program is up and running!

UPDATE, JANUARY 29, 2018:

There is much more news and commentary on this issue:

The Rochester Democrat and Chronicle has an excellent story and an excellent editorial. 

The Daily Record, which first broke the story, has a follow-up.

The Daily Record also has an excellent op-ed column from Michele Cortese, executive director of the Center for Family Representation.

WXXI Public Radio also has a very good story.

UPDATE: FEBRUARY 7, 2018:

And one more excellent story, from Rochester City Newspaper

In the 1980s, when I was a reporter in Rochester, N.Y.,
 the Chamber of Commerce used this slogan.
I've updated it slightly to reflect current reality.

KEY POINTS

● More than a decade ago, New York City pioneered a model of family defense in child welfare cases. Impoverished families got a defense team including a social worker and a parent advocate as well as an attorney with a reasonable caseload. 

● In the years since, foster care was curtailed, so children were spared enormous needless trauma from wrongful removal and from being moved from foster home to foster home. They also were spared from the high risk of abuse in foster care itself.  At the same time, child safety improved. The model was so successful that the city child protective services agency supported it, and the city repeatedly expanded it. 

● A similar program in Washington State has earned similar support from “all sides” and achieved similar results.

● So when New York State offered grants to Upstate counties interested in replicating the New York City model, the Monroe County (metropolitan Rochester) Office of Public Defender applied.  All of the county’s family court judges supported the application.

● The county won the grant. But then, county officials stepped in and refused to accept the money. In other words, they turned down a chance to help the county’s children with a proven approach – at no cost to the county.

● As one family court judge pointed out, the plan would have done no more than give poor people the same access to justice that the rest of us already have in these cases. But for the Monroe County child protective services agency, that was too much to bear.

In most of the country, when children are torn from impoverished families, those families are almost literally defense-less.

In some states, there is no right to a public defender at all.  And in most states, family defense consists of a grossly overworked public defender or private attorney on a shoestring contract who just met his client outside the courtroom five minutes before the first court hearing – a hearing that often takes place after the child already is in foster care.  (That’s because, contrary to what they so often claim, child protective services agencies and/or law enforcement can take away children on their own authority – and they often do.)

Naturally, most child protective services agencies like it that way. The judge is reduced to wielding a rubber-stamp instead of a gavel; the agency itself becomes the real judge, jury and family executioner.  The agency can make little case or no case, offer no real help to families, and stumble and bumble along as it pleases.

But, as with so many times these agencies take a swing at so-called “bad parents” – the blow lands on the children.

The lack of meaningful defense is one of the main reasons so many children are taken needlessly from everyone they know and love, often when family poverty is confused with “neglect,” and consigned to the chaos of foster care.  That helps explain why two massive studies found that, in typical cases, children left in their own homes fare better even than comparably-maltreated children placed in foster care.  Other studies document the high rate of abuse in foster care itself.

So consider the paradox: Child protective services agencies routinely claim – again, falsely -- that “we don’t take away children – a judge has to approve everything we do.”  But those same agencies are terrified of anything that would actually let those judges hear all sides of the story and make a fully-informed decision.

Indeed, the extent to which a child protective services agency objects to letting judges actually hear all sides of the story – that is, the extent to which it fights meaningful family defense – is a good measure of just how arrogant that agency is and how much it wants to avoid accountability. And that brings us to the child protective services agency in Rochester, New York and surrounding Monroe County.

As it happens, Rochester is where I did some of my first stories about the overreach of child protective services and the harm that does to children when I was a reporter for WXXI-TV, the public television station, and City Newspaper, the alternative weekly.  That was about 30 years ago.

A story last week in a regional newspaper for the legal community, The Daily Record, suggests things have not changed much.

The Record reports that, when offered a chance to replicate a proven model for high-quality family defense – a model shown to improve outcomes for children and save money, a model already in use for well over a decade elsewhere -- with the tab picked up by New York State – the county turned it down.

A little later, I’ll get to the excuses the county offered up for turning down this help (of which my favorite is the claim, which I must admit is true, that attorneys for parents would, in fact, represent parents).  But cutting through the b.s., what the county really is saying is this:

If poor people ever got the same quality of defense the middle class can buy for itself and if those poor people were able to challenge our lousy decisions, poor casework and meaningless cookie-cutter service plans we’d have to up our game. We’d have to stop taking away so many children needlessly, and provide real help to families.

The New York City experiment

This story really begins in New York City in 2000.  An advisory panel formed by the Annie E. Casey Foundation as part of a class-action lawsuit settlement sat in on Family Court hearings.  As they documented in a scathing report, they were appalled. They saw families railroaded, needless placements and judges so terrified of the city’s tabloid press that they admitted, out loud and on the record, that they rubber-stamped removals even when they felt the child protective services agency, the Administration for Children’s Services (ACS), hadn’t made a good enough case.

A member of that panel, John Mattingly, got the Casey Foundation to fund an experimental program in which the newly-formed Center for Family Representation (CFR) would provide high- quality defense counsel for a small number of families.

In addition to a lawyer with a reasonable caseload, each family would be assigned a social worker who could work with the family and craft alternatives to those cookie-cutter “service plans” churned out by ACS.  Often there would be a third member of the team, a parent advocate, someone who had been through the system herself or himself, and could guide and encourage the parents.

At first there was only CFR handling a limited number of cases in Manhattan. But after CFR proved itself and Mattingly became commissioner of ACS,* the city itself began funding parental defense.  Today, CFR and three other providers, the Bronx Defenders, Brooklyn Defender Services and Neighborhood Defender Services of Harlem provide this kind of defense counsel to about 90 percent of the impoverished families dealing with ACS in four of the city’s five boroughs.

Those who cling to stereotypes about everyone who loses a child to the system, believing them all to be sadistic brutes who torture children would, of course, find this upsetting. Those who know who really is in the system understand why this approach is so good for children.

In 2011, Brooklyn Defender Services produced this video about their work:

Brooklyn Defender Services also represented some of the families profiled in the landmark New York Times story about foster care as the new Jane Crow.

The Bronx Defenders was the subject of this story in The Nation

This model of family defense won an award from the New York State Bar Association, and it’s been recognized as a national model by the federal Administration for Children, Youth and Families.

Among the most important reasons for this success: Often these teams can get in early, instead of after the child already is in foster care, and much damage has been done.

As should be clear by now, this is not a matter of “getting bad parents off.”  The early intervention allows the defense team to prove families innocent when they have, in fact, done nothing wrong.  (Yes, I said prove families innocent. In the real world of child welfare, the burden of proof is reversed.)  The team can craft safe alternatives when there is a problem but foster care isn’t necessary, and come up with better ways to safety reunify families when it is.

It’s needed because, as the New York State Office of Indigent Legal Services put it:

Unfortunately, experience has shown that agencies too often wield their emergency removal power in situations where such drastic state action is unnecessary, and without first attempting to address the issues that brought the family to the agency’s attention.

High-quality family defense is one of the reasons that, even with setbacks over the past year, New York City has a relatively low rate of child removal – and, during the years since this model expanded citywide and entries into foster care declined, key measures of child safety improved.

And one thing more. Foster care is more expensive than safe, proven alternatives. CFR alone estimates it’s saved taxpayers $37 million in reduced foster-care costs since 2007.

Washington State also says yes

New York City is not alone.

Washington State started a program of high quality family defense in 2000.

.

Between 2000 and 2003, of 144 cases in the program in which families were reunified, not one was brought back to court.

“These children aren’t coming back,” said then-Washington State Supreme Court Justice Bobbie Bridge, a supporter of the program, “and we do get them back when we make bad reunification decisions.”

Even the state Attorney General at the time, who had to face the better-prepared lawyers, supported the project and wanted it expanded.

A 2011 evaluation found that in counties that have this kind of representation children are reunified more quickly. And when reunification really isn’t possible, guardianship and adoption occur more quickly as well.

But Monroe County says no

So when New York State’s Office of Indigent Legal Services offered a competitive grant to Upstate counties to test the model, Monroe County’s Office of Public Defender, which has a long and distinguished history in the field of family defense, applied.

Monroe County certainly needs it. Though the county has made real progress in reducing needless foster care, in 2016, the last year for which comparative data are available, Monroe County still took away children at a rate more than 20 percent higher than New York City, when entries into care are compared to the number of impoverished children in both places. For reasons discussed below, the Monroe County record probably was worse in 2017. And, as the Times story documented so well, there remains plenty of needless removal in New York City.

Monroe County won the grant.  Everything was all set to go.

Until county officials stepped in and turned down the money.  It’s not clear exactly who made the decision, but it appears to have been the County Executive, Cheryl Dinolfo. Presumably she was acting on advice from the county child protective services agency.

But she was acting against the advice of all of the county’s family court judges.  Judge Joan Kohout called the initiative “a great idea” adding: “I can’t imagine why they wouldn’t accept this grant, frankly.”

But I can.  One possibility: There was a high-profile death of a child “known to the system” last year, and the child protective services agency has been under intense pressure as a result. Dinolfo may be afraid of doing anything that political opponents could portray as “soft on child abusers.” (In fact, such deaths typically set-off foster-care panics, sharp sudden spikes in needless removal of children. So improved family defense actually is needed more now than at any time in recent years.)

An aversion to accountability

But I think the reasons go deeper – to the typical child welfare agency aversion to any kind of accountability.

What we do know is that the official reasons offered up by the county are pathetic excuses, an attempt to conjure up false images of vicious technicality-wielding lawyers scaring innocent children and hiding the crimes of child abusers.

The Daily Record  quotes a statement from county spokesman Jesse Sleezer, in which he claims that the program

would have injected lawyers into cases of abuse and neglect much earlier, potentially intimidating child victims and limiting access by CPS workers who would otherwise assess and monitor the child’s safety.

Well, for starters, as noted above, they’ve been doing this in New York City since 2002, that hasn’t happened, and the city child welfare agency is so comfortable with the program that it keeps expanding it.

Monroe County Executive
Cheryl Dinolfo

And throughout the modern history of child welfare, from the notorious McMartin Preschool case and others like it, all the way to the last major case to make it to the U.S. Supreme Court (in which my organization’s volunteer vice president served as pro bono counsel for the family) those most prone to intimidate children have been caseworkers, law enforcement and “therapists” – when the children didn’t give the answers they wanted to hear.

But even were this the first program of its kind, and even had been no track record of success elsewhere, Sleezer’s claim would be false on its face.

As Judge Kohout points out, these lawyers would have no magical powers.  It would just put the poor on something closer to an equal footing with people of more means.  Said Judge Kohout: “This program would provide the same right and the same access to legal advice to poor parents.”

And that raises a more fundamental issue: If the child protective services agency is “gaining access” in ways that would be stopped by a lawyer for a middle-class family, then chances are what the agency is doing to poor families is, at a minimum unethical and possibly illegal.  So does Monroe County Child Protective Services want to stop poor people from having higher-quality family defense so it can break the law?

Judge Kohout also understands the real reason why it’s a good idea to use this model early in a case: “There would be great benefit in avoiding dragging people into court and stigmatizing them by giving them that help up front.”

Mr. Sleezer’s other objection

Sleezer offered up one other objection:

The attorneys involved in this pilot program would serve only one client — the parent accused of abuse — and would not have any professional responsibility to serve the best interests of the abused child.

Aside from the fact that the overwhelming majority of parents are not accused of abuse – the charge is neglect – Sleezer is, in one sense, right.  Attorneys appointed to represent parents do, in fact, represent parents. You know; sort of like the way, in criminal cases, defense attorneys don’t also work for the prosecution and prosecutors don’t also represent the accused.

Indeed, by Sleezer’s logic, child protective services agencies shouldn’t be represented in court either, since those attorneys represent the agency’s interests. 

And it is arrogant in the extreme to assume that the interests of parents and children are at odds from the get-go. In fact, that’s part of what judges are there to determine.  What parents’ lawyers really are doing is defending families. In the process, they defend children from all the harm of needless foster care.

Determining whether the course of action recommended by those family defenders, or that recommended by lawyers  representing any other party, should be followed is what we have judges for.

The only a chance a judge really has to sort through competing claims and figure out what’s really best is if all sides get a chance to make the best possible case for their position.  Perhaps that’s why, as noted above, all of Monroe County’s family court judges supported the grant application. 

I believe the technical term for this approach, in which all sides make their best case and a judge issues a ruling, is “justice.”

Apparently, that’s exactly what Mr. Sleezer and his bosses are afraid of.

*Yes, that is the same John Mattingly I often criticized on this blog when he ran ACS. But whatever his failings, he deserves enormous credit for helping to create and expand high-quality family defense.

What some lawyers for New York City’s child welfare agency REALLY think of the people they see in Family Court

The lawyers who represent the New York City child welfare agency in Family Court have been known to complain about how much work they have to do.  But some of them seem to have a lot of time on their hands.

The New York Times reports that three lawyers for the city’s Administration for Children’s Services and a fourth from the Legal Aid Society, which represents children in child welfare cases, took pictures of people in Family Court, probably parents and other adult family members, then posted the pictures on Facebook and exchanged crude, demeaning banter about the attire of those they photographed.

According to the Times:

 State law … prohibits taking photographs inside a courthouse, including hallways, without permission of the chief administrator of courts. The photos, including one of an obese woman with an emoji superimposed over her face, appeared to have been taken surreptitiously.

ACS Commissioner David Hansell issued the customary denunciation of this behavior, telling the Times that it is “completely inconsistent with our agency culture and expectations…”

But is it?

On the one hand, there are a lot of lawyers working for ACS. There is no evidence that all, or even most of them think this way.

But what does it say about the culture at ACS that even some lawyers felt free to engage in this behavior – and post the results on Facebook? Apparently they did not fear discipline, or even censure from their peers.

Also:

● Anthropologist Tina Lee, who spent 14 months “embedded” with all key players in the New York City system wrote in her book, Catching a Case:

I often … witnessed disrespectful or callous comments made about parents and families by attorneys between cases or in hallways and elevators. … I heard attorneys and court officers openly make fun of parents and their problems between cases…

● Lee did her field work at ACS and Family Court in 2008. But Joyce McMillan, Director of Programming for New York’s Child Welfare Organizing Project says:

It has changed only  a little.  Parents still voice concerns about how they treated regularly. … I have great concern that the legal representatives in this article were so comfortable with their behavior they posted it on social media. This level of disrespect is indicative of a culture that is detrimental to preserving families.

● This story comes just weeks after the Times story about foster care as the new “Jane Crow” – documenting case after case of needless removal of children, rooted in biases against poor people, especially people of color.

● And, of course, Study after study documents both the racial bias and the class bias built into the American child welfare system.

Why should the lawyers be different?

Why should we expect ACS lawyers to be different from the “Blogger of the Year” for the so-called Chronicle of Social Change, an online child welfare trade journal, who, in criticizing the Times story, dredged up an odious racial stereotype. 

As she reminds us in every column she writes, the “Blogger of the Year” was a social worker for the Washington, D.C. child welfare agency for five years.  The editors of the Chronicle, the Fox News of child welfare, have not apologized or in any way distanced themselves from her hateful column.

And, once again, I hope the rest of America will keep in mind that most systems are worse than the one in New York City.

So the next time New York City Mayor Bill DeBlasio or a member of the New York State Legislature whines about judges refusing to simply rubber-stamp ACS recommendations to tear apart families, keep in mind the baggage that some ACS caseworkers and some ACS lawyers are dragging into the courtroom with them.

Brilliant reporting on child welfare in The New Yorker – made possible by open courts

It’s another example of why “sunshine is good for children.”

The late Judge Judith Kaye opened New York's
family courts to the press and the public

On the heels of the outstanding story in The New York Times about foster care as the new “Jane Crow” comes another brilliant deep dive into child welfare in New York City – this time from The New Yorker. (Once again, as you read it, please keep in mind that in most places, the child welfare system is worse, often far worse, than in New York City.)

Almost as striking as the story itself is why reporter Larissa MacFahrquhar wrote it. Here’s how she explained it in the New Yorker’s daily email newsletter:

How do you decide whether to take children from their parents? For the most part, we read about child-protective services only when they fail spectacularly—when a child is killed at home. The press then excoriates the usual suspects—the caseworker (How could she miss signs that now seem so obvious?), child protection (How could they train their workers so poorly?), and the city (Does it care so little about children that it won’t pay for enough caseworkers to protect them?). 

Because of this, most of the pressure on child protection is in one direction—in favor of removal. But it’s no small thing to take a child from his family. It seems strange to me that removal has come to seem the safe and cautious thing to do, and, since the press has played a large part in promoting this idea, I thought it might be useful to have a journalistic account of both sides of the story.

I sat in on the Bronx Family Court for several months and watched judges grapple with this awful decision. One mother had been coming to family court for eight years, since her young daughter had burned herself on a curling iron. For much of that time, her children had been in foster care. The foster-care agency believed that the foster parents should adopt the children. Child protection was nervous about their safety if they returned home but also knew that children often fared badly in foster care. The mother’s lawyer said that the mother loved the children and that her mistakes didn’t justify keeping them apart.

Everyone was arguing for the best interests of the children. The mother sat, mostly silent, as the lawyers made their cases

Several things stand out about this story, but it may be most notable for how well it answers one question.  Research has told us over and over again that in typical cases children placed in foster care fare worse even than comparably-maltreated children left in their own homes.

As the reader is placed in the position of the mother in this case, forced to watch helplessly as the children deteriorate in foster care, we understand why this happens.

Something else that stands out about this story: In most states, it would have been impossible to do it. That’s because it relies so heavily on the reporter’s ability to see the process for herself, by spending months in what, in New York, is known as Family Court.

In most states these hearings are closed. That’s not to protect children, it’s to protect almost everyone except the children – CPS agencies that do terrible things to families and lawyers and judges who either can’t or won’t do their jobs.

In 2001, another superb journalist, former Pittsburgh Post-Gazette reporter Barbara White Stack examined this issue in what is still the definitive series on the topic, Open Justice. She found that none of the excuses for closing hearings held up to scrutiny and all over the country onetime opponents became supporters. (We summarize some of the key findings of that series, and update some of the data in NCCPR’s Due Process Agenda.)

So along with MacFahrquhar, the courageous mother at the center of the story and some great lawyers from the Bronx Defenders, someone else deserves credit for this particular piece of outstanding journalism: the late Judge Judith Kaye.

She’s the one who ordered these courts opened in New York, when she was chief judge of the state’s highest court, the Court of Appeals.  As she said at the time: “Sunshine is good for children.”

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.

Remembering Judith Kaye, the New York judge who put the “family” in Family Court

Judge Judith Kaye

Judith Kaye, the first woman named to New York State’s highest court, the Court of Appeals, and the first to serve as its Chief Judge, died today at age 77.

Though The New York Times notes many of her accomplishments, the paper neglects some of the most important.  They concerned the state’s Family Courts.  Here are some of them:

Protecting domestic violence victims, and their children

It had been common practice in New York – and remains common practice elsewhere – for child protective services agencies to take away children from battered mothers, just because the mothers “allowed” the child to “witness domestic violence.”

A federal class-action lawsuit brought an end to the practice in New York. (NCCPR’s Vice President, Carolyn Kubitschek, was co-counsel for the plaintiffs.)  During the course of that suit expert after expert testified that while witnessing domestic violence sometimes can, indeed, be emotionally harmful to a child, taking that child from the victim of the violence is much, much worse.  One expert said that, for the child, it is “tantamount to pouring salt into an open wound.”

The section of U.S. District Judge Jack Weinstein’s decision summarizing this testimony remains one of the most popular pages on NCCPR’s website.

After Weinstein ruled, the City appealed.  At one point the federal appellate court sought clarification of New York law from the state Court of Appeals.  That led to a sweeping, unanimous decision, written by Judge Kaye, making clear that New York State law does not allow this barbaric practice.  In effect, that extended the impact of the lawsuit statewide (though, as always, it’s not clear if child protective services agencies actually are following the law).

Giving children real lawyers

Although juvenile court hearings are supposed to be all about the children, often the children are effectively silenced.  That’s because instead of a lawyer tasked with advocating for what the child wants, children often get “law guardians” who are free to substitute their own judgment for that of the child.   And that’s often the easiest course of action, particularly when it simply involves rubber-stamping the recommendation of a child protective services agency.   So if a child desperately wants to return to her or his parents from foster care, but the law guardian disagrees, the child is effectively silenced.  (While less common, a child who desperately wants to remain in foster care also may be silenced, and that is equally wrong.)

Of course, the fact that a child wants a particular outcome doesn’t mean he or she should get it. And some children are too young to express a rational preference, or any preference at all. But deciding what’s best is what judges are for.  And they can’t truly do justice unless everyone has an advocate making the best possible case for his or her side.

The New York State Bar Association promulgated guidelines calling for children’s lawyers to follow the direction of their clients – the children - except where the child was too young.    But the guidelines were not binding.  Judge Kaye made them binding.

Opening family courts to press and public

One of the reasons juvenile courts can get away with trampling on the rights of families, and attorneys can provide representation that’s inadequate – or worse – is that, in much of the country, the hearings are secret.  Slowly that’s been changing, and today, nearly half of America’s foster children live in states where these hearings are open to the public and/or the press. 

In New York, that was done by order of Judge Kaye.  I believe the news stories exposing what went on those courts after the hearings first were opened are part of the reason New York City became a national leader in providing high quality defense counsel for families caught up in the child welfare system through organizations like The Bronx Defenders, Brooklyn Family Defense Practice and the Center for Family Representation.

And no one ever boiled down the rationale for opening these courts better.  Said Judge Kaye: “Sunshine is good for children.”

Her own family has many reasons to be proud of the legacy of Judge Judith Kaye.  And a lot of children and parents who may never have heard of her have reason to be grateful.

The Tennessee foster care suit: It’s 10pm. Do you know who your plaintiffs are?

Andrew, Kenneth, Nancy, Donna, and Kiera have several things in common.

All of them are very young. Andrew is 23 months old, Kenneth is two years old, Nancy is 4, Donna is 5 and Kiera is 6.

All of them were torn from their families "on or about November 6, 2009" based solely on the word of a caseworker who told a judge they were in danger. None of their parents had a chance to defend themselves or fight for their children first. In all cases, the allegation against the parents is "neglect."

All of them are from Anderson County, Tennessee, a county with a total child population of only about 16,000.

And, though, of course, they don't know it, all of them are suing the State of Tennessee.

Andrew, Kenneth, Nancy, Donna, and Kiera are the "supplemental named plaintiffs" in the lawsuit brought by the group that so arrogantly calls itself "Children's Rights" as it attempts to block a state law that ever-so-slightly counterbalances the enormous incentives to needlessly tear apart families. (The law is discussed in detail in previous posts to this Blog.)

There is nothing unusual about having children as "named plaintiffs." Depending on what you want to change it can be difficult to sue a child welfare system without them (though in the many other such suits I've read, at least some of the young people were old enough to understand what was going on.) And in this particular case, the first time CR tried to sue over this law, using the children it already had as plaintiffs in a longstanding settlement against the Tennessee system, the judge effectively said they couldn't use the same plaintiffs this time; they'd have to find new ones.

Of course the children didn't make the decision to sue the State of Tennessee themselves. That was done by someone deemed capable of representing their "best interests" – known as their "next friend." For four of the five children in this suit their "next friend" is their guardian ad litem, a lawyer named to argue for whatever the lawyer thinks is in their "best interests," for the fifth, the decision was made by the child's CASA (which figures).

But how could they possibly know that joining this particular suit was in the children's best interests? And how could CR?

Normally, the stories of named plaintiffs are carefully researched. Then, at least, the lawyers can be confident in their own minds that the relief they seek will help these particular children. And, of course, the stories of the named plaintiffs usually are a key part of persuading the judge. Lawyers look for the most horrible examples of whatever injustice it is they are suing about. So if the issue is, say, abuse in foster care, the named plaintiffs will have endured prolonged, horrifying abuse, outlined in detail when the lawyers file their complaint. In Oklahoma, for example, CR just released a 163-page report on the horrors that befell the named plaintiffs in their class-action suit in that state.

But in the Tennessee case, according to CRs Complaint, the only thing we know is that these children were taken from their homes based on the word of a caseworker, and that decision was promptly rubber-stamped by a judge whose record indicates a fanaticism about child removal. (Remember, Anderson County is the one where children are taken from their parents at a rate four to five times the state average, which would make it a contender for Child Removal Capital of America.) And there certainly wasn't much time for investigating the cases or getting to know the children. Having been taken away "on or about November 6, 2009" they were already named plaintiffs by November 9, when the Complaint was filed.

So now, with no indication that CR's lawyers have ever met their new "clients" and with no indication if they even know whether these children ever should have been removed at all, CR is using these children to increase the odds that their time in foster care will be prolonged.

CR would argue that they're just trying to free the judge from any extraneous considerations, like money. But CR is remarkably inconsistent about that. Children taken from their homes routinely are placed with private agencies that are paid for every day they hold those children in foster care. Yet I know of no instance in which CR ever has sued to stop those kinds of financial incentives. So the real effect if CR wins, using these children as their named plaintiffs, would be to make sure that any and all "external" incentives, personal, political and financial, push judges in only one direction – taking away the children and stashing them in foster care for a long, long time.

It's possible, of course, that foster care might be the best thing that's ever happened to Andrew, Kenneth, Nancy, Donna, and Kiera. Maybe they really were in imminent danger and there was no other alternative but to remove them without so much as giving their parents a hearing; maybe their removal and continued placement in foster care will save their lives. But the odds are very much against that. Research tells us that If, indeed, foster care is prolonged, chances are only one of these five children will do well as a young adult. The odds are at least one, probably two of them will be abused in foster care itself. The odds that they will get in trouble with the law and be unable to hold a job and the odds that Nancy, Donna, and Kiera will become pregnant as teenagers are greater than had they been left in their own homes.

So at a minimum, didn't the lawyers at CR have an obligation to find out all about Andrew, Kenneth, Nancy, Donna, and Kiera before using them to seek a change in state law that would increase the odds that they will stay in foster care? Didn't they have an obligation to find out if that change would be best for these specific children before suing in their names?

If, in fact, CR wins its lawsuit and if these children wind up better off in foster care, they should know that CR's lawyers helped keep them there so they can thank them. But if CR wins and foster care turns out to be a disaster, as it so often does, then Andrew, Kenneth, Nancy, Donna, and Kiera should know that among those who share responsibility are some lawyers from New York City who probably never knew them and probably knew little about them when they turned them into "named plaintiffs."

CR’s new push for more foster care in Tennessee

The group that so arrogantly calls itself "Children's Rights" is back in federal court in Tennessee. Once again, CR is trying to ensure that nothing gives the judge in Anderson County, whose fanaticism about child removal may be unexceeded anywhere in America, even a moment's pause about tearing apart family after family.

    As is discussed previously on this Blog, CR is challenging a law that says if counties tear apart families at more than triple the state average they are free to keep right on doing so – but they have to pick up the tab for the foster care. The only county actually affected is Anderson, which removes children at a rate either four times or five times the state average, depending on which source you believe. Either way, that might make Anderson County a candidate, along with a few others, for Child Removal Capital of America.

    In theory, CR is simply arguing that judges must continue to make their decisions in their current pristine, pure state, uncontaminated by even a passing thought about money or anything else besides "the merits." If anyone needs still another reason to open these hearings to press and public, the fact that CR is trying to pass of this Disney version as reality is a very good one.

    If that really were how juvenile courts operate, there would be no foster-care panics, no surges in removals after a high-profile case made headlines. Judges would simply admonish caseworkers not to be influenced by the fear of landing on the front page, refuse to rubber-stamp all those additional removals and that would be that. If decisions were made purely "on the merits," there would be no enormous variation in rates of removal, not just among counties but among states, to the point where children in one state are torn apart at rates five times higher than another. And were decisions made only "on the merits," it would not be possible to track the rise and fall of the foster care population throughout the 20^th Century, as Prof. Leroy Pelton does in his seminal book For Reasons of Poverty, (Praeger, 1989) to one factor above all others: changes in federal financial incentives.

    Incentive after incentive after incentive, personal, political – and financial – push child welfare agencies to take-the-child-and-run. These same incentives push courts to rubber-stamp those decisions and, sometimes, even demand removal when a child welfare agency wants, say, in-home supervision.

The way to counter these incentives is not to pretend they don't exist, but to push back, with incentives to curb removals, so the incentives cancel each other out and decisions really can be made on the merits. (Of course that also would require that impoverished birth families have high-quality legal counsel, so they can balance the presentations by child welfare agencies, but one never hears about that from CR.)

    Tennessee's new law provides what can best be called one tiny counter-incentive. And that is the one and only incentive CR chooses to fight – in Tennessee or anywhere else.

    All over America, private agencies are paid for every day they hold a child in foster care. If they do what they are supposed to do – return the child safely home or, when that truly is not possible, get the child adopted, the money stops. The pernicious impact of these incentives was documented at least as far back as 1975, in a brilliant series by the New York Daily News.

    But I know of no case in which CR has gone to court to try to change these incentives. On the contrary, when New York City first tried to change them, in 1995, CR went to court and successfully stopped the change. (Now, the City is making some tentative steps toward changing those incentives again.) In perhaps the ultimate irony, CR just today released a study reportedly whining about how children languish in foster care too long in New York City. Perhaps had CR targeted the financial incentives to hold them there, back when the Daily News first exposed them, things might be different now. (CR didn't exist as a separate entity back then, but its founder, Marcia Lowry, was doing much the same work, affiliated at the time with the New York Civil Liberties Union.)

    So clearly CR isn't against all financial incentives – those that prolong foster care are just fine.

WHERE THE "SMOKING GUNS" REALLY ARE POINTED

    CR's "supplemental complaint" to the court is filled with quotes from various state officials and state documents which CR seems to consider damning. In fact, they show precisely why the Tennessee law is needed.

CR quotes the Commissioner of the Tennessee Department of Children's Services, Voila Miller, on a provision of the original bill that would have let the state bill counties if they took children at more than double the state average, instead of triple, as in the final law. Had that passed, and if counties did not change their ways, Miller estimated it might have reimbursed the state a total of $7.5 million. Said Miller:

The way we track commitment rates in Tennessee and most states is the number of children per thousand that come into the custody of the state. In Tennessee we have an average and most states, I mean, most counties rock right around that average of somewhere between three and four kids per thousand, we have a few counties in this state that commit at 16, 20 per thousand. That is significant overcommitment of children. Children are coming into state custody who should not. Now, we have been addressing this problem aggressively and we've made a lot of progress, and as I said, I want to work with those counties in making sure those kids can stay safely in their home. I don't ever want to collect a nickel of that 7.5 million dollars, I want to reduce that commitment level. [Emphasis added.]

    A Tennessee legislator explained that the provision was simply common sense. We're all more careful about spending our own money than someone else's:

[T]he policy consideration for this particular matter is to somewhat have our local governments be a little more judicious as to who they commit to state custody . . . . It makes people more responsible for their decisions, and when you're more responsible for your decisions you're going to be more careful with your decisions.

    Then CR quotes a memo from The Tennessee County Services Association, which it describes as "a nonpartisan, nonprofit public interest group." The memo said, in part:

The state average is 3.6 per 1,000 for children committed in the Dependent & Neglect and Unruly category. Anderson County's commitment rate is 17 per 1,000, some four times more than the state average. … The public policy implication is that in some cases juvenile judges are over-using their commitment authority and, thus, not offering alternatives to the family nor the child. [Emphasis added].

    Exactly.

    Then CR quotes the child welfare agency's budget director, who says:

    Actually, this one reduction actually is the only one in our Department that actually is good for kids. Now, you as a county may say, well, no, this is affecting your county budget. Our goal with this is that we as a Department don't collect a dime from the county. And that would be what was in the best interest of kids. . . . It's about . . . leaving [kids] with their families. (Emphasis added. But the ellipses this time and in the quote below are from CR – one can only wonder what CR chose to leave out.)

    And finally, what CR seems to think is the ultimate "smoking gun": An e-mail from the child welfare agency's legislative director in which he says:

    Anderson county [sic] clearly understands that they have a huge problem on their hands – their judge … We have the support of the county commission to work with the judge to bring down unneeded commitments.

    As for the law itself, in its final version it requires the child welfare agency to initiate a "collaborative planning process" with counties when entries are double the state average. Counties must pay only when they exceed triple that average.

    So what CR seems to view as a veritable arsenal of "smoking guns" points only in the direction of an agency that finally decided to use financial incentives in a way that can bring significant benefits to children – by saving them from the enormous harm of needless foster care.

    As to how CR got back into court on this issue – that, too, is instructive. And I'll try to get to it in a future post.