Crisis In Family Court
The stakes are high and time is short in family court.
On a Wednesday afternoon in Manhattan, Judge Gloria Sosa-Lintner makes quick and careful decisions based on limited information and hopes for the best. Hour after hour, sometimes till late at night, Sosa-Lintner hears child-abuse and neglect cases as many as 60 a day.
It is a grim scene: dingy linoleum floors, fluorescent lights, orange plastic chairs, drop ceilings, kids whining, and courtrooms so cramped you can smell what the stenographer had for lunch.
Each case garners 10 or 15 minutes of Sosa-Lintner's attention. Over the course of an hour, half a dozen families are united or rent asunder.
At 4:15 a grandmother petitions for weekend visits with her two grandchildren. Grandma has successfully completed 185 days of drug rehab; mom, a drug addict, is missing in action. "Are you ready for the weekends?" Judge Sosa-Lintner asks. When grandma, lawyers, and social workers concur, the judge grants the visits with a "Good luck, ma'am."
At 4:25 a mother in drug rehab is chastised for testing positive for cocaine that morning. Her two children are in foster care. "If you don't get yourself rehabilitated you're going to lose your children to someone who recognizes that they're a priority," the judge warns. A tear rolls down mom's face. The judge is unmoved. "Try harder," she says curtly.
At 4:40 a mother of two preschoolers is congratulated for 108 drug-free days. The judge awards weekend visits.
At 4:51 a heroin-addicted mother who had been AWOL from rehab for three months begs to be reenrolled in detox so she can eventually get her toddler out of foster care. The judge orders her into rehab and maps out the consequences of failure: "You need to get yourself together and stay clean or your child will be freed for adoption."
At 5:05, a mother who has 267 days of sobriety under her belt and has been awarded provisional custody of her daughter is congratulated by the judge: "You're doing well. Keep it up."
At 5:15 a man disputes that he is the father of a child in his custody. He says the mother a drug addict who can't be located slept around a lot. He says he doesn't think he is the dad and even if he were, he doesn't want the boy. The judge points out that two weeks ago he appeared in court as the father of the child. The man shrugs. A lawyer for the Administration for Children Services observes that this is a "child with special needs" and suggests foster care. A lawyer for the child agrees the boy ought not be placed where he is not wanted. A lawyer for the mother says nothing. The judge looks at the father and sighs, disgusted: "This is the sad reality of family court."
New York's family court is in crisis.
Beginning in 1995, when 6-year-old Elisa Izquierdo was beaten to death after a family court judge returned the child to her abusive mother, Giuliani demanded a when-in-doubt-yank-'em-out approach to child welfare. As a result, the number of child-abuse and neglect cases being filed by the city's Administration for Children Services (ACS) has shot up from 6658 neglect cases in 1995 to 10,395 cases last year a 55 percent increase. What that means is that the number of kids being removed from their homes in the city has surged from 8000 in 1995 to 12,536 in 1998.
But as the number of family court cases climbs, the number of judges and attorneys remains almost constant. For example, there are 4000 more abuse and neglect cases in the city's courts this year than there were five years ago, but only 15 new Legal Aid attorneys to handle the tremendous increase. (The city's 145 Legal Aid attorneys, who represent the children, typically juggle 120 to 130 cases at a time.) And while judges across the state are dealing with 100,000 more cases a year than they did a decade ago, the legislature has added only five new family court judges to the system.
The courts are clogged. Cases crawl through the system, often taking as long as 18 months to get to trial. That's part of the reason kids average four years in foster care, waiting to find out if they will get returned to their parents or put up for adoption.
And things are about to get a whole lot worse.
Last month, the New York State legislature passed its version of the federal Adoption and Safe Family Act (ASFA). Under this law, the state must file a petition to put a child up for adoption if the kid has been in foster care for 15 months out of the last 22 months. In New York, that could mean that 5000 children would immediately be put up for adoption and a good percentage of the city's 40,909 children in foster care would quickly follow suit.
"Everybody agrees ASFA has the potential to completely overwhelm the courts," says Public Advocate Mark Green. Because of the speeded-up time frame, families will be in court a lot more frequently. "Increasing the work for family court without increasing the resources is a potential nightmare," he says.
Advocates for parents and children also worry that the new law may be unduly harsh. "In many instances 15 months is not enough time for parents to make changes, particularly where substance-abuse issues are involved," says Madelyn Freundlich, executive director of the Evan B. Donaldson Adoption Institute, a nonprofit research and policy center. Indeed, 75 percent of neglect cases are drug related (i.e., mom's an addict). But in New York City, Rudy Giuliani has slashed funding for preventive services such as drug-treatment programs for parents.
"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:
"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.
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."
Research assistance: Hillary Chute
Judge Gloria Sosa-Lintner, a family court judge for 11 years, sees the best and worst of family court. Every day.
Part of the day she is a regular family court judge, with all that entails countless delays, absent or unprepared attorneys, confused parents and the rest of the day she runs a new drug court, called Family Treatment Court. Here, treating the problem expeditiously is the name of the game.
In order to qualify for FTC, parents must admit they've got a drug problem and that their kids have suffered as a result of it. They then waive their right to a fact-finding trial and jump right to "disposition," or deciding what to do about it. The logic is straightfoward: The faster parents get into treatment, the sooner they can get their kids back. "The women who are participating in FTC must feel like they have a chance to get their child back in a reasonable period of time," says Sosa-Lintner. This is the carrot.
The stick? Addicts who can't stay clean can rapidly lose permanent custody of their children.
Manhattan's Family Treatment Court is the latest in a line of experimental "boutique" courts introduced by New York's chief judge, Judith Kaye. Only a year old in March, FTC is one of only 12 such courts nationwide, taking as its premise a nonadversarial approach to resolving child neglect cases (75 percent of which involve parental addiction). Drug courts are already wildly popular in the criminal system, where their numbers have grown from one a decade ago to 400 today. The idea is just now gaining acceptance in family court; the first two Family Treatment Courts in New York State were launched last year.
Unlike conventional Family Court, FTC has a team of people who work with the same clients, in the same courtroom with the same judge, under a strict schedule of appearances that speeds the entire process. As the Adoption and Safe Families Act is implemented over the next year, such speed will be crucial.
"Clearly there are two clocks running here," says FTC project director Raye Barbieri. "There's the recovery clock, which is long-term and 15 months is short-term to someone trying to recover from years of addiction. And then there is the child development clock. Fifteen months in the life of a one-and-a-half-year-old is almost its entire life."
The key to speeding the process is keeping close tabs on clients FTC clients are in court every two weeks in the beginning, and then monthly for the duration of a year. Within two days of her first court appearance a mother and 90 percent of the time it is the mother seeking to regain custody is assessed by a clinical team. If she is willing to acknowledge her addiction and waive her right to a fact-finding trial, FTC staffers find an appropriate drug treatment program for her. The following day she appears before Judge Sosa-Lintner and is immediately enrolled in drug rehab.
The court holds the mother accountable. Each time she appears in court, she first visits the FTC offices, where her urine is tested for drugs. The FTC staff checks in regularly with her drug program counselors to keep track of her progress; those progress reports are read aloud to the judge. The judge, who gets to know the FTC women because of their regular appearances, has a clear sense of each person's history, knows to expect occasional relapses, and knows to reward clients with more access to their children as they stay clean for 30 days, 90 days, 365 days.
By all accounts, the program is a success.
"FTC can't be the only option after all, it's voluntary but it should be available to anyone who wants it, in any borough," says Sosa-Lintner, who likes the hands-on approach. "A lot of attorneys in regular family court don't think they can do any work on a case between adjournments. They just look at the case file that day, as they're walking into court and try to figure out what they're going to say on the spot. That's not true with FTC." The frequent appearances not only require lawyers and social workers to have all their ducks in order, they give the judge confidence in her decisions. "In regular court it may be a year before you see someone back in your courtroom. With FTC the women are in court on a monthly basis. All the facts are known to the judge a lot sooner so you can monitor the whole situation better."
And that means that kids are spending a lot less time in foster care. "In FTC we have families being reunited after seven months, on average, and that's basically unheard-of," says Cynthia LaCaprucia, a Legal Aid attorney who represents the children in court. "I can see what years and years of foster care do to kids, and it's not good." Is she confident about returning kids to their parents within this abbreviated time frame? "Yes, because I have more information than I usually do. I've seen the parents regularly, I see the written reports, see the drug test results. In regular court, I have no information for months on end, so I'm going to err on the side of caution when I advise whether to return the children or not. Here, I know the women and I see the changes and I feel confident returning the children. I really do." K.H.
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