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Her estranged husband, shuber fontaine, declined to comment on these charges.
Consuelo, fearful that verbal abuse was escalating into physical abuse, decided to leave. On July 21, 1998, she gathered up her four children and fled to a Staten Island domestic violence shelter.
Her nightmare should have been over; it was only beginning.
For the next 10 months, Consuelo would find herself in and out of family court, trapped in an increasingly tangled web of accusations and obfuscations. On September 17, 1998, two months after she left Shuber, the city's Administration for Children's Services (ACS) charged her with neglect for allowing her children to witness domestic violence. "Respondents constantly argue in the presence of the children, with the children intervening and the child . . . states that she wished her parents would not argue as much," the city's neglect petition states. "As a result of the foregoing, subject children are neglected."
No matter that Consuelo had already extricated herself from a bad situation. The city continues to press the case, insisting that exposing her kids to domestic violence renders Consuelo an unfit mother. ACS wants the children taken away.
Consuelo's case is bizarre, but not unusual. The legal term for her crime is "failure to protect," and across the city mothers like Consuelo are being punished for their husbands' abuse.
It is a new and unanticipated reaction to the decades-long effort to publicize the plight of battered mothers and of children growing up in violent homes. "Increasingly in New York City, abuse and neglect proceedings are brought against battered mothers whose children are removed from them where the only allegation is their children's exposure to domestic violence," concludes a new report by the Working Group of the Child Welfare Subcommittee of the New York City Inter-agency Task Force Against Domestic Violence.
With little regard for the specifics of each situation, this is happening even in cases like Consuelo's, where the mother has already left her abuser and the kids are in no danger. Domestic violence advocates across the city report a flood of new failure-to-protect cases crossing their desks and assert that the city, in its prosecutorial zeal, is punishing victims rather than batterers, and traumatizing kids rather than rescuing them. As a result, battered women may be increasingly reluctant to reach out for help. "Knowing that they may be investigated by child protective services," the report says, "battered mothers are more likely to remain in the abusive home, isolated and afraid, so that they can remain with their children."
The task force sees the surge of "failure to protect" cases as part of a larger trend, under Mayor Giuliani, toward removing kids from their homes rather than providing services to prevent foster care placement. (The number of neglect cases filed by the city has shot up from 6658 in 1995 to 10,395 last year a 56 percent increase.) In domestic violence cases, where no one is disputing the mother's competence, that policy can be especially cruel for kids. "Removing children re-victimizes them by increasing their fear of abandonment, while they are struggling with anger, grief, anxiety, and feelings of being responsible for the abuse," the report concludes.
According to advocates, city caseworkers typically demand that battered women leave their abusers and threaten them with the loss of their children if they don't. Meanwhile, the city's domestic violence shelters are saying, sorry, no room. Consider the women's plight: In 199798, the Victim Services department received 34,175 requests for shelter from domestic violence. That's an average of 38 requests a day during a period when there were an average of only 10.6 shelter spaces available per day. And the shift from temporary shelter for those women who are lucky enough to land a spot to permanent housing is equally difficult. In New York City, 31 percent of abused women say they returned to their batterers primarily because they could not find permanent housing.
"The onus is always on the mother to move. That often means making the mother homeless, and making the children go through that," says Susan Lob, a domestic violence consultant. "It's a vicious cycle. If the kids are taken away from her, it's even harder to get into a shelter since women with kids have priority. And yet she can't get the kids back until she has permanent shelter."
The city, on the other hand, says its record on domestic violence is good. ACS spokesperson Leonora Wiener points to an increase in spending on domestic violence prevention (from $200,000 last year to $400,000 this year), noting that the city has hired a full-time domestic violence specialist for one of its 14 field offices and trained 400 of its 1200 ACS caseworkers about teen relationship abuse. As for the charges made in the task force's report, Wiener would say only that ACS is studying the document.
Meanwhile, though the city doesn't track the number of failure-to-protect cases it has prosecuted, anecdotal evidence backed by family court records continues to pile up:
There is the woman whose ex-boyfriend came to her house in January, fought with her, and broke her arm. At the hospital, she got a phone call informing her that her two children, neither of whom had seen the attack, had been taken by ACS. The city claims the woman failed to protect the kids from witnessing this isolated act of domestic violence. It took her three weeks to get provisional custody of her kids; six months later, the neglect case is still pending.
There is the woman who went to court 23 times over the last four years, filing orders of protection and pleading with officials to keep her husband out of the house and to force him to pay child support. When he punched one of the children, the city took all five kids away from her but never arrested him. She didn't get the kids back for almost a month, and the neglect charges are still pending.
There is the immigrant woman whose enraged husband slit her throat one day in the midst of a furious argument. The woman survived, but ACS took her baby away. Even though the infant slept through the entire incident in a separate room and the mother had no intention of ever returning to her husband (and even testified against him before a grand jury), the city used the failure-to-protect law to put her baby in foster care. "When I encountered her in court, her throat still bandaged, she was sobbing uncontrollably," recalls Dorchen Leidholdt, director of the Center for Battered Women's Legal Services at Sanctuary for Families. "Having her child removed was as traumatic to her as being slashed by her abuser." Leidholdt listened as a translator interpreted her client's anguished questions. "She wanted to know why, if she's a victim, is she being treated like a criminal. She kept saying, 'I don't understand this American system.' "
Consuelo's case, too, defies all logic.
"They charge me with neglect because we engage in disputes in front of the kids?" she asks, incredulous. "And anyhow, it wasn't like they [ACS] say. There was no physical hitting. We're arguing sometimes but then we go into the other room, or I'd tell the kids to go downstairs to my mother-in-law's." Consuelo, an Ecuadoran immigrant who worked as a financial analyst in her country, struggles for a moment, searching for the right words to describe her frustration. "But it doesn't seem to matter what really happened."
Consuelo's troubles with the city began shortly after she left her husband. She had been living in a domestic violence shelter for almost a month when she inadvertently initiated a disastrous chain of events by calling ACS and asking for help.
On August 27, Consuelo learned that Shuber may have exposed his penis to her seven-year-old daughter, Rosa (not her real name; the names of the children in this article have been changed). Consuelo says she heard about the incident while discussing a booklet on sexual abuse that her 15-year-old daughter, Patricia, had brought home from her Big BrotherBig Sister program. Rosa was coloring pictures in the booklet as the family discussed the book's content. A little bit later, Rosa penned the following words in pink and green Magic Marker:
Shuber made me look at his vagina. . . . we 3 [Rosa and her two half sisters, Shuber's biological children] wer playing nintendo. Then he called me. I stoped the game. I put it on pause. He told me to look at it. I didn't want to look at it. I said no. But he keeps on saying look at it, look at it. I looked at it for 1 min. I went back to play.
Worried that something more had happened, Consuelo spoke to her counselor at the domestic violence shelter, who helped her call ACS's Emergency Unit. Two days later an ACS investigator arrived to question Rosa. Consuelo followed up with a second call to ACS, asking that her daughter be examined and receive counseling. On September 1, Consuelo took Rosa and the two younger children to their family doctor to make sure there were no physical signs of sexual abuse. The doctor found none.
(Shuber declined to speak to the Voice about these charges, but he has denied them all along.)
Consuelo says she met with two ACS caseworkers on September 3 and showed them her Order of Protection against Shuber. Questioned, she explained that she'd left home after arguments and verbal abuse. Two weeks later, ACS slapped her with the neglect charge.
After that, Consuelo's case seemed to snowball. Charges were added and language was hyped in a way that domestic violence advocates say is quite typical for families who, having entered "the system," find everything they do under ACS scrutiny. Consuelo watched helplessly as Shuber's "spankings" became "beatings" in the neglect petition. Then watched again, as ACS amended the original petition and added a new charge against Consuelo: This time, even she was blamed for the beatings. Consuelo says a conversation she had with a social worker was twisted until her avowal that she refused to spank any of the kids and that she and Shuber even argued about spanking became proof that "she admits to being present when Respondent Shuber Fontaine would beat the child" and that she "failed to protect the child from being beaten."
The most peculiar incident in the city's campaign to nail Consuelo with neglect took place in family court on March 16. There, ACS attorney Yvonne Humphrey concluded her questioning of the Fontaine family's caseworker by announcing that she wished to amend the neglect petition for a third time. Humphrey based her new charge on "the caseworker's testimony here today that the mother informed her that on the occasion of these alleged incidents [Shuber's exposing himself to Rosa], she was . . . actually out of the house." It's not until the judge pointed out just how screwy this was "Is it neglectful for the mother to leave the children in the care of her husband? Is that the amendment?" that the ACS attorney backed down.
In this topsy-turvy case, visiting family court is like stepping through the looking glass. Up is down, good is bad, and common sense has fled. The city's motivation eludes almost everyone involved. Even if Shuber exposed himself to Rosa and even if the court determines that this constitutes sexual abuse, it has little bearing on the girl's future; Rosa is not his biological child and he has no visitation rights. Chances are, she will never see him again. Shuber told the Voice he's not going to be seeking custody of his two biological children, either.
Why the city would want to take the kids away from Consuelo is even murkier. Consuelo has no intention of rejoining Shuber; even if she is guilty of failing to protect the kids from witnessing domestic violence, she has corrected the situation. Even Rochelle Yankwitt, the law guardian who represents the interests of the children in court, opposes the city in this case. "Ms. Fontaine has been a good parent," Yankwitt insists. "She should have custody." The therapist who interviewed Rosa in the aftermath of the alleged sexual exposure, Lisa Sanders of the Children's Advocacy Center of Manhattan, apparently agrees. "It is recommended that a reassessment be done regarding the decision to name Mrs. Fontaine, the alleged victim in a domestic violence situation, a respondent on a neglect petition," Sanders's confidential report concluded.
As the case stands now, the kids are "paroled" to Consuelo, but "under ACS supervision." That means ACS caseworker Kysha Jones drops by from time to time and questions the children, also making them strip down so that she can check for bruises or marks. Consuelo fears for the future. "I didn't want to make this, what my husband did, something criminal," Consuelo says. "I needed help. But don't take my kids."
Advocates for domestic violence victims, meanwhile, are watching, horrified, as their efforts to help women like Consuelo backfire in the city's hands. "There is an increased awareness of the impact of domestic violence on children," says Sanctuary for Families's Leidholdt. "Advocates like us have worked toward that for years, but when that awareness meets an underfunded and poorly run bureaucracy, the result is a disaster."
As the Voice went to press Monday night, the neglect case against the Fontaines was dismissed by a family court judge, who reprimanded ACS for providing insufficent evidence and using the word beating in an "inflammatory" way. ACS attorney Yvonne Humphrey made a statement formally protesting the decision.
Research assistance by Hillary Chute