Crisis In Family Court

The City Gets Tough On Child Abuse and Neglect, And The Judicial System Staggers Under The Load

"The father, who had custody of his kids, had been in a drug program for nine months— and had tested negative for drugs for nine months— but the Administration for Children Services was concerned because he was supposed to attend outpatient treatment four days a week; he'd missed four days that month. Even though the drug program confirmed they had no positive tests, ACS wanted to take his kids away." Fortunately, LaCaprucia recalls, the judge decided in the father's favor.

The scenario is a common one. Contrary to popular perception, most New York City children aren't taken away from their parents because of abuse; neglect cases outnumber abuse cases by eight to one. "ACS is increasingly splitting up families over allegations like marijuana use, surly behavior, or even sloppy housekeeping," the City Council's Committee on General Welfare noted in a February report. "Moreover, black and Hispanic children are disproportionately affected by these foster-care practices. Seventy-one percent of all foster children are black and 24 percent are Hispanic."

Family court judges are frequently the only hope the parents have of fighting ACS. But the odds are stacked against them. Parents often have only five or 10 minutes, in a corridor of the family court, to explain their case to a lawyer they've only just met. Those lawyers don't do much— nine times out of 10, according to a Vera Institute study, parents' attorneys don't file a single motion on their client's behalf. As a result, according to the state Office of Court Administration, only one out of 10 parents who fight abuse or neglect charges wins.

Carrie Boretz

In some communities, the effects have been sweeping. "One out of every 10 Central Harlem children is in foster care," says Mike Arsham, director of the Child Welfare Organizing Project, a Harlem-based organization for parents whose kids are or were in foster care. Arsham believes the city punishes parent and child by separating them— and that it's a quick fix. "Child-welfare policy," he says, "is being shaped more by tabloid headlines than by decades of street-level experience."

indeed, the tabloid headlines— from Lisa (Steinberg) to Elisa (Izquierdo)— tell a terrible tale. And, at first glance, the mayor's response seems logical: better many children placed unnecessarily in foster care than one child dead at the hands of abusive parents. But the facts suggest otherwise. In 1995, the year Elisa Izquierdo died, 31 children died of child abuse in the city. Under Giuliani's assault on family preservation and the foster-care panic that followed, the number of child-abuse deaths rose to 38 in 1996.

There are similar results in every state where abuse has led to a panicky rush to get kids into foster care. Carolyn Kubitschek, president of the National Coalition for Child Protection Reform, has tracked that phenomenon from Illinois to Connecticut to New York— wherever a child's death makes headlines. "The system gets completely overloaded, caseworkers are suddenly enormously overworked, they're sent out to investigate many more complaints than they can handle, the number of complaint calls to hotlines goes up, they end up making decisions based on hasty investigations— and make the wrong decision." In each of these states, the deaths go up, Kubitschek says, "because they're removing the wrong children, because they don't have time to thoroughly and adequately investigate the ones they should."

When child-abuse and neglect cases capture public attention, the story is presented as a battle of competing interests: the rights of the child versus the rights of parents. What self- respecting politician, or priest, or public figure, or even loving parent would want to jeopardize the health of a helpless baby one iota to protect the rights of a parent? In this simplistic scenario, each right we grant parents comes at the price of child safety.

The reality is somewhat different.

Each parent or parent advocate— often in concert with advocates for children— rattles off a list of changes that would improve fact- finding in neglect cases and speed efficiency in family court— procedural adjustments that in no way put children at risk. (Indeed, speeding up the process is generally perceived as being in the child's best interest as well.)

Suppose the swift justice afforded some families in Manhattan's experimental Family Treatment Court were available to all parents with addiction problems (see sidebar below). Suppose parents had the same lawyer for the duration of their family court experience— one who knew them and their history? Suppose there was a parents' bill of rights? Suppose parents were given a guide to help them through the system? Suppose the city genuinely supported foster families who would take in sibling sets? Suppose there were enough lawyers and judges and social workers that kids didn't have to spend years in limbo?

Of course, some of these changes might cost money.

And the beauty of presenting this as a battle of competing interests— family preservationists versus child protectionists— is that politicians and community leaders can paint themselves as crusaders for children but never have to put their money where their mouth is.

"We have simply decided to substitute slogans for thought," laments former family court judge and failed 1994 attorney general candidate Karen Burstein. To fix family court and to fix the foster care system would require commitment and dollars. "We have to stop pretending to ourselves that saving children can be done for cheap." For Burstein, there is no substitute for genuine reform. "Kids are not part of some theoretical world. Their lives are unrecoverable; it's vital that every case be looked at very carefully. But the administration just doesn't have the time, the resources, or the will." She pauses, and then reiterates, "They don't have the will."

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