Impaired Judgment

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In Jana Newton’s Bed-Stuy experience, in-your-face attitude is a survival skill. Newton has loads of it–if something pisses her off, she’ll let you know at jackhammer decibels. When she was younger, bad judgment got her a Child Welfare Administration case file after she left her two small children with an aunt and started doing drugs with a party crowd. Once she cleaned up and the kids came back home, she says, “I swore to myself that they would never go back.” But that outrageous attitude–plus an apartment that she admits was filthy, “a fucking monstrosity”–would get her children taken away again five years later and give Newton a two-year education in the lessons of Family Court.

Nobody has ever accused Newton of turning her hot temper on her kids, and she is fiercely protective of them. The problem was simpler: Newton and her last caseworker just didn’t get along. Her caseworker didn’t approve of Newton’s freewheeling parenting style or her admitted marijuana use. For her part, Newton was frustrated that her requests for help to buy clothes for her kids weren’t getting met.

By November 1996, Newton was pregnant, unemployed and having problems with her boyfriend that occasionally turned violent. Even though she was trying to make a better life for her kids–getting involved in school tutoring and breakfast programs, for instance–her estranged mother filed a report to the Administration for Children’s Services (ACS). The complaint turned the tension to disaster.

When the caseworker got to Newton’s apartment, it was a mess, with trash bags and clothes everywhere. She was given a few days to clean up. But Newton called the worker the next day in a fury. “I cursed her out, calling her every name in the book,” she remembers. “That night, six cops came for my kids.”

A few days later she was in Brooklyn Family Court, facing allegations that her apartment was dirty, that she smoked marijuana daily, that there wasn’t enough food in the house, that the kids had missed nine days of school, and more. As is her right, Newton asked for her children to be returned home while the case was working its way through hearings, a process that could take eight months to a year. Her request was rejected. Newton’s lawyer cut a deal: The children would live with their grandmother while the allegations got sorted out. They would stay there for almost two years.

Along with thousands of other families around the city, Jana Newton and her children were swept up in a crusade to overhaul the city’s child welfare system. The effort began at the end of 1995, when the city child welfare agency was reborn as ACS, an attempt to fix a system that had become nationally infamous for allowing six-year-old Elisa Izquierdo to die at the hands of her abusive mother.

Since then, in its drive to ensure that no child in the city suffers neglect or abuse, the agency has hauled thousands of New York City families into court.

Now, judges and a cumbersome legal system are left to sort out truly negligent parents from sloppy housekeepers, the incidental spankers from murderous time-bombs, the rehabilitation-ready from the addicts who will ignore their children. “Caseworkers are so scared now that they don’t offer any preventive services,” says one recently departed ACS attorney, who requested anonymity. “Removals are done way too quickly, without any investigation… I would fight so hard not to file certain cases. But then my supervisor would make me file it, or ACS would. And the case would get filed.”

The flood of cases arrives in a Family Court that cannot give them the attention they need. A 50 percent surge in new child neglect petitions over the last two years has nearly overwhelmed the system, forcing judges and lawyers to take on unworkable caseloads and make critical decisions about children’s lives without sufficient time or resources.

In the year Elisa Izquierdo died–just as crack’s legacy was fading–Family Court placed about 8,000 children in foster care. In 1997, the number had increased to 11,958. Amid this foster care frenzy are many families that should never have been split up in the first place. Now, they must wait far too long to be reunited.

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Parents walking through a Family Court metal detector for their 9:30 a.m. call have no idea when their cases will be heard. So they wait, and wait–in Manhattan’s garish vaulted chambers, on institutional wood benches in Brooklyn, in Queens’ claustrophobic waiting rooms. “You’re sitting there for five hours, and then you’re in front of the judge for five minutes,” explains Luis Medina, executive director of St. Christopher’s-Jennie Clarkson, an agency that contracts with ACS. “People who’ve had their kids removed suddenly find themselves in a culture where time doesn’t matter.”

Court dates are anywhere from a few weeks to several months apart, and parents have to go back to court repeatedly. In 1996, nearly a quarter of families had to wait more than six months before getting a trial.

It’s all supposed to work sensibly. An attorney representing ACS attempts to prove that neglect or abuse has probably taken place. (Contrary to popular impression, neglect cases outnumber abuse cases by about nine to one.) Evidence might be positive drug tests or a child’s hospital records; witnesses include social workers, cops, family members and the parents themselves. Parents are represented by court-assigned attorneys, and a Legal Aid “law guardian” advocates for the child. At the end of the trial, the judge decides whether the allegations have held up.
Usually, they do. In 1996, 88 percent of cases ended up establishing neglect or abuse, either through a judge’s finding or a parent’s admission. But criminal court’s high standard of proof doesn’t apply here. ACS attorneys, aided by caseworker investigations, don’t have to prove much to keep a child in foster care: A probability of neglect is enough.

Besides, in Family Court, judges have an incentive to keep families in the system, and parents have an incentive to cop to the charges. “Judges want jurisdiction over a parent, because they want to exercise caution and control,” explains Lauren Shapiro of Brooklyn Legal Services, who represents parents. “Without a finding, the parent goes away and ACS can’t continue supervising them.”

Knowing that the odds are against their clients, parents’ lawyers will often advise them to own up to charges right away, and start working on getting their kids back. Just under half of all parents decide to forego trial.

If a case results in a finding against a parent, a judge will hold a disposition hearing an average of two months later. The hearing decides whether a kid will remain in ACS’s care or go back home under agency supervision. At this point, about three out of four kids are kept in foster care.

Sounds straightforward, if unpleasant. But in a stressed-out Family Court, something usually goes wrong. Sometimes a parent, lawyer or caseworker can’t be found. Other times, a caseworker hasn’t completed an investigation in time for the disposition hearing. And sometimes, if a parent has been arrested on charges of neglect or abuse, the parent’s lawyer might ask that the Family Court hearing be delayed, so that evidence from that hearing won’t wind up in the hands of a D.A.

The system is set up to ensure that children aren’t beaten or killed. But it also keeps some kids who aren’t in that kind of danger away from home for months or even years. “Separation is traumatic,” says Medina. “In the vast majority of neglect cases, most kids, despite their circumstances, experience a debilitating sense of losing control. There’s a fear that anyone can knock on the door and take them away. And more often than not, in the mind of the child it’s ‘What have I done wrong?”

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In 1995, the courts heard 6,658 new neglect cases. Two years later, 9,986 cases were filed. Abuse cases rose 43 percent in the same period. Judges, attorneys and child advocates agree: ACS, much more than its predecessors, routinely removes children from their parents.

Blame the media, says ACS Commissioner Nicholas Scoppetta. “If you look at the numbers of reported cases of neglect and abuse, you can almost plot them against the high-profile cases,” he says. He adds that training sessions that teach health care workers, teachers and other “mandated reporters” to recognize and report neglect and abuse have inflated the number of cases his agency must investigate. But he also acknowledges that, in about a fifth of all cases, kids removed from their parents will end up at home or with relatives within a few months.

“Some of those removals absolutely had to go through that process,” Scoppetta says. “But others go in and out of the courts. If we had more information at the beginning of cases, we might have been able to decide not to put the child through the system.”

Trying to close the information gap, ACS has created a Queens pilot program that brings community members to a meeting immediately after a child has been taken away from home. A teacher could recommend ways to cut down truancy, or a pastor might suggest a neighbor who could help with child care. Since June, out of the 25 families in this program, 14 managed to stay out of court, and ACS plans to expand the program later this year.

But without more substantial changes, family advocates insist, there will still be too many kids taken from their parents unnecessarily. “The media attention on abuse resulted in a backlash of more removals,” says Shapiro. “It’s a very different attitude now. ACS workers and lawyers admit that there’s no flexibility anymore. It’s just removal.” Attorneys for both children and parents say that ACS is splitting up families over allegations that were rarely taken seriously before. Everything from insinuations of parental mental illness to reports of children being left alone for a couple of hours may wind up in front of a judge.

“They’re trying to bring everything to court and let the court decide,” acknowledges Judge Gloria Sosa-Lintner of Manhattan. “But I don’t think they’re accusing people unjustly–most of these cases are sustained.”

Parents’ attorneys disagree. “The system is absolutely biased against parents,” says Edwina Richardson, who’s represented them for 10 years in Manhattan Family Court. “I see cases that all parties once would have thought were junk cases or nonsense now being taken seriously by the court.” Marijuana use, for instance, never used to be a big issue. “Now,” she says, “it’s being used to take children away.”

Agency sources say that ACS enforces a strict policy: Unless a caseworker can convince her office’s chief that a case shouldn’t be filed, reports of suspected neglect or abuse from mandated reporters must be brought to court. “Our jobs got harder and harder because some of the cases got stupider and stupider,” says the ex-agency lawyer. “There was less and less proof, and worse and worse investigations by the caseworkers. Sometimes it was embarrassing.”

“They’re bringing cases that should never really come to court,” agrees Leslie Abbey, who represents children in the Bronx. She points out that many of these cases could have been resolved by providing services to parents and children. Jana Newton’s attorney, Cheryl Solomon, says her client’s experience is a perfect example. “She needed counseling–she was overwhelmed,” Solomon says. “But that didn’t happen. She was basically told, ‘Your mother says you’re doing drugs, pee in a cup.'”

Child welfare advocates say that the Giuliani administration’s decimation of preventive services–notably the Family Rehabilitation Program, which provided treatment to drug users as an alternative to foster care–has also funneled more families into court. “There’s no longer any ACS drug money. That’s very bad policy,” says Mike Arsham, executive director of the Child Welfare Organizing Project. “You’ll spend $15,000 a year to put a child in foster care but not $5,000 to treat their parents? It doesn’t make sense.”

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ACS may be sending kids to court in order to help them, but the policy, by swamping the system with cases, seems to be having the opposite effect. The pressure and the pace are intense, and every case suffers. Most hearings last between five and 15 minutes, and frequently have to be cancelled for lack of usable evidence. For a case that goes to trial, families must wait through as many as nine hearings.

Family Court is also clogged with custody battles, domestic violence cases, juvenile delinquency hearings and–thanks to new enforcement laws–an increasing number of child support proceedings. It all added up to 230,000 cases in 1997, a third more than the court saw 10 years ago.

In 1997, 44 judges handled more than 41,000 child protective cases, each one requiring multiple hearings. Manhattan heard 1,458 new neglect cases in 1995; two years later, 3,247 came in. In Queens, new neglect and abuse filings increased by 75 percent between 1996 and 1998; in Staten Island, 126 percent.

The system is not equipped to handle the volume, especially the high-maintenance neglect and abuse cases. “The child protective caseload in Manhattan has gone up 55 percent since the beginning of 1996,” says Judge Richard Ross, chief of that borough’s Family Court. “And we have the same number of judges, the same number of lawyers as before. What do people think is going to happen?”

What the courts desperately need, everyone agrees, is more bodies to handle the influx. Under the scrutiny of the tabloids–which sued and won access to the once-closed courts–judges are pressured to play it safe with the 40 to 60 cases they hear each day. “We’re experiencing a tremendous surge in filings,” reports Judge Cira Martinez, who oversees five-and-a-half judges who hear neglect and abuse cases in the Bronx Family Court. “We could use one-and-a-half more judges.”

Some of the parents’ court-assigned lawyers are hacks whose disrespect for their struggling clients is evident. Others are dedicated crusaders for family reunification. None have had a raise since 1985. “We’re losing a lot of good people,” laments Richard Beaman, a longtime Bronx attorney for parents.

And none have the resources to provide real representation. Parents’ attorneys work out of a tiny shared room in each courthouse, with no access to support services. “That’s my office, over there,” says Manhattan lawyer Bill Anshen, pointing to a pay phone in the hall. The lawyers are AWOL about a quarter of the time in Bronx and Manhattan cases, often because they’re tied up in another courtroom. They can file motions on parents’ behalf, but they rarely do–even motivated lawyers find that many judges deride the request as a burden.

“I met with my lawyer for 15 minutes–total–the whole year I was in there, two minutes at a time,” says Sandra J. (she asked that her last name not be used), who got her youngest daughter out of foster care last fall. A year before, Sandra had been overwhelmed with drug problems. She was lucky–after a close scare with the law, she got treatment and a job, and knew enough about the system to tell her lawyer the important details as soon as she met him.

Attorneys follow their clients only through the end of the disposition hearing. After that, parents are on their own. “Lack of continuity in representation is a terrible problem,” says Nanette Shor, a Bronx Legal Services attorney who routinely picks up cases where children have languished in foster care because their parents had inadequate counsel. “A new attorney will come on at later hearings,” she explains, “but significant things have often happened that they know nothing about. Parents aren’t getting advice on how to end their children’s placement.”
Meanwhile, the Legal Aid attorneys who represent the kids’ interests stagger under caseloads that average 300 to 400 children at a time. “A manageable level would be half that,” says Jonathan Roman, a Bronx Legal Aid lawyer. Part of the burden, Roman says, is that children’s attorneys don’t just do law. They also serve as deputy social workers, making sure the kids get the services they need. Often, they also become lay experts in child psychology, asking a judge to order a psychiatric evaluation for a kid that seems depressed, or speech therapy for a developmentally delayed toddler.

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Part of the problem is that the child welfare agencies that contract with ACS can’t keep up with the courts. Judges are supposed to size up needed services, parent-child visitations, and long-range family goals during the hearing, but they contend that they often can’t get the information they need from the agencies. The Vera Institute found that in two-thirds of the Bronx and Manhattan cases it surveyed, ACS and its contracting agencies didn’t provide written case information to the courts.

Judges often order parents into programs like drug treatment, counseling or parenting classes. But in many cases, an agency fails to make effective arrangements. The orders don’t get carried out, and the court usually doesn’t find out about the lapse until the parent shows up for review many months later. “If services haven’t been provided, they’re not ready to have their children back,” Shapiro says. “Then the case doesn’t come back for another year. This is why kids are lingering in foster care.”

Because agencies can’t be counted on to comply with court orders, children’s attorneys say they’re sometimes reluctant to recommend that their clients get sent back home, even when they believe that a family might be ready to be reunified: Without being sure that a caseworker will be there supervising the family closely, it’s just too risky.

Getting services is just as difficult when kids are still in foster care. In one horrible case, an abused 17-year-old girl was virtually forgotten by an agency for months. Currently in foster care, she had recently been returned to her Bronx mother by a Pittsburgh uncle, who had custody of the girl since infancy, locked up in the house and out of school. She was also sexually abused.

The court ordered up badly needed services for her, including counseling, tutoring, vocational training and special ed enrollment. Three months later, nothing had happened. “She sits at home and does nothing,” her law guardian announced angrily at a November court hearing, asking a judge to hold a caseworker in contempt. The judge gave the worker one last chance, and adjourned.

In this chaotic system, one minor set-back can set off a chain reaction of delays. Absent parents, witnesses or lawyers, missing information or services, a crowded docket–any one thing may cause a judge to adjourn a hearing and reschedule it for the next convenient date. Systemwide, that’s now typically six weeks to two months later. In the Vera Institute’s sample, Bronx cases averaged five adjournments before they finished; Manhattan cases, four postponements.

“Every time I turn around, it’s ‘Case adjourned,'” says Aloma Johnson, a Bronx mother of four whose two infants were put in foster care after they tested positive for cocaine at birth. The toddler has already been adopted, but now that Johnson is certified clean, she is determined to get her other daughter back. Her case has been adjourned nine times so far. “So that’s another three months gone past, and another three months, and another three months,” she says. “It adds up. If people were in court when they were supposed to be, she could come home.”

All along, New York State Chief Judge Judith Kaye has been agitating for major court reform, including merging all of the state’s courts into one streamlined system. For Family Court, which historically has received less than its fair share of resources, that would mean a chance to get more judges when caseloads become intolerable. But the change would take a state constitutional amendment, derailed in the legislature last year.

For now, Judge Kaye is making smaller moves. Last year, the Manhattan, Bronx and Brooklyn Family Courts were split into four divisions, including one dedicated to child protective cases. Lawyers say the new system makes it easier to be in the right courtroom at the right time, cutting down on adjournments. It also means that time-sensitive juvenile delinquency hearings don’t push child protective cases off the calendars.

Since last March, Manhattan’s Family Treatment Court has also developed a new drug abuse referral program. Working with Judge Sosa-Lintner, lawyers and social workers plan and monitor drug treatment plans for parents. While parents’ attorneys say it can be a struggle to protect their clients’ rights in a courtroom driven by consensus, they’re also pleased at the chance to help parents get services and get out of the system as quickly as possible. Since 75 percent of all parents in Family Court are there because of drug problems, the project could eventually have far-reaching impact.

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But Jana Newton wasn’t so lucky. In order to speed things up, she took her lawyer’s advice and admitted neglect, copping to the dirty home but denying the marijuana allegation. Solomon, her attorney, asked a judge to order random drug tests that would prove her client’s sincerity. But since Newton didn’t have a phone, she couldn’t be summoned for random tests. Instead, the court order meant she had to show up at a Manhattan child welfare agency every single morning for two months.

When she gave birth in June 1997, ACS took her baby away from her in the hospital, simply because she still had an open case. Back in court two months later, her caseworker recommended that Newton’s children be kept in foster care because of her “explosive” personality. After the hearing adjourned, Newton raged at the caseworker again, and this time, she was arrested for making verbal threats. “She’s such a great personality, but that doesn’t work in the courtroom,” admits Solomon. “I tried to tell the judge that Jana’s reaction was normal–if someone were threatening to take my kids, I wouldn’t say, ‘I consent.'” Says Newton, “I was never humble. Why should I be? They were taking my kids.”

Newton returned in October for the first part of her disposition hearing and in December for the second. In February, the judge ordered that Newton and her children could again have unsupervised visits, but it wasn’t until May that the court learned that the agency had failed to make arrangements for the visits. The case wasn’t closed until June, when the court sent Newton’s baby back home with her, provided she continue with counseling and random drug tests. Her other children came home in August.

Since then, Newton’s child welfare agency seems to have forgotten about her. She stopped going to counseling and hasn’t been asked to take a drug test once. Apparently, her Family Court nightmare is over, but Newton is still angry about the ordeal. “I had no one on my side,” she says. “My kids were taken for a dirty apartment.”