By Jared Chausow
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"For years the goal was family reunification, and parents were given a lot of opportunities to rehabilitate themselves," says Cynthia LaCaprucia, a staff attorney with the Manhattan Juvenile Rights Division of Legal Aid. "And there were problems with that, too. Some kids spent many, many years in foster care without a plan and the longer they stayed in foster care, the older they got and the harder it was for them to be adopted. Now the pendulum is swinging completely in the opposite way."
family court is at the center of a pitched battle between two warring camps, which can loosely be labeled "family preservationists" and "child protectionists." Ever since 1995 the year of Elisa Izquierdo's front-page death city officials have been vocally protectionist.
The city's approach is summarized in ACS commissioner Nicholas Scoppetta's 1996 outline of reforms: "Any ambiguity regarding the safety of the child will be resolved in favor of removing the child from harm's way." Such language "removing the child" doesn't give child-neglect investigators much wiggle room to opt for more home visits, preventive services, or closer monitoring of home situations they're not sure about.
Preventive care can be a lot cheaper the typical package of parenting classes, day care, or help with housing costs around $2627 a year, as opposed to the $13,401 it costs to keep a child in foster care. But social workers say they are under pressure to remove kids from the home if there is even a whiff of concern.
"Those at the top of ACS have clearly communicated to local managers that they would rather take a child away and disrupt his whole life than get bad publicity," says Faye Moore, the vice president of grievances and legal services for the Social Services Employees Union, which represents child welfare workers.
But the city denies all of this, saying that its child-abuse investigators are scrupulous about assessing families and are better trained than ever. (Scoppetta's management report even brags that the NYPD is teaching evidence-gathering and interview skills to social workers.) ACS claims its family-preservationist critics are misguided and blinded by their sympathy for the poor. Investigators, Scoppetta's report says, "have sometimes been reluctant to take enforcement action against people living in squalor and degradation."
still, wretched conditions are not always a sign of bad parenting. In July 1997, ACS investigators entered 76-year-old Agatha Sibley's apartment and found a distressing scene. The ceilings in the bathroom and the bedroom closet had partially fallen in, and water and plaster had rained down. Clothes once kept in the closet were scattered everywhere. Sibley's three grandchildren romped among the mess.
To Sibley's dismay, ACS declared her housing situation inadequate and the environment unsafe for children. The agency seized her three grandchildren and with the approval of a family court judge put them in foster care. Sibley was desperate. And, because she lived in public housing, confused. How could her landlord the city ignore requests for the most basic repairs on her apartment and then ACS the city remove her kids saying the apartment was unsafe? Hadn't she gone to the Housing Authority, to housing court, and even her political representative in an effort to make the city repair her apartment?
"I don't know why they did this," Sibley says. A year and a half later, her ceiling has been fixed, but the city retains custody of two of the kids. "I just want my grandkids back."
In January, Sibley joined a group of other families in filing a class-action suit against the city, saying her grandchildren were wrongfully removed from her care. The suit alleges that the city's policies are racist, because African American children form a disproportionate share of the foster-care population. It also charges that parents are denied due process, because they are presumed guilty before a trial: the children are taken first, and returned only if parents can prove their innocence.
"Our principal concern is to change the system so the city is less zealous about removing kids especially when there is no evidence of physical or sexual abuse in questionable situations that are often due to poverty," says Center for Law and Social Justice attorney Joan Gibbs, who is representing the parents.
The case highlights the thorny problem family court judges face: how to distinguish between poverty and neglect. And with ACS investigators under pressure to resolve any "ambiguities" by removing kids from their homes, these cases, full of gray areas, are exactly the ones on the rise in family court.
"The city doesn't recognize that the indicators of neglect are so closely aligned to the indicators of poverty that they are sometimes impossible to separate," Doreen Davis, an ACS investigator for 11 years, wrote in a recent Child Welfare Watch report. Preventive services, which provide the help that might make the distinction clear, are offered less and less. "The city is basically punishing parents for being poor without giving them the tools to keep their families together."
"There has clearly been an increase in filing of what I would call 'marginal cases,' " says LaCaprucia, the Legal Aid attorney who acts as a law guardian on children's behalf. Asked to describe a "marginal case," LaCaprucia recalls a recent situation: