Active Parenting

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Sharwline Nicholson could have been just another victim. After being beaten by her boyfriend and then bullied by child welfare caseworkers, who took her children while she was in the hospital and sent them to foster care without explanation, she might well have decided to accept whatever else life had to dole out.

Instead, against all expectations, Nicholson decided to fight back. Even more improbable is the result: She won. In December, Judge Jack Weinstein issued an injunction ordering the city’s Administration for Children’s Services to stop removing children from battered mothers without first obtaining a court order. Unless the city convinces an appellate court to rule otherwise, the injunction in In re Sharwline Nicholson takes effect June 22. Nicholson and another plaintiff in the class-action suit were also awarded $150,000 each in a cash settlement.

“People in my neighborhood told me that I would never win,” says the soft-spoken immigrant from Jamaica. “I really had no money, was a single mother. What are the odds, you know?”

With few resources other than determination, at age 33 Nicholson has transformed herself into a vocal parents’ rights activist. While completing coursework for a bachelor’s degree in behavioral science, she has become a spokeswoman on behalf of battered women and embattled parents, putting a human face on domestic violence victims while serving as a role model for other mothers trying to get their children back from foster care.

As a regular speaker at panels throughout the state, she tells her story to audiences of parents and advocates for women and families. She is also planning to file a grant application to start a new Brooklyn shelter. “I keep on remembering when I was in that same predicament. I remember I had nowhere to go, no one to talk to,”says Nicholson. “From this lawsuit, I have become so knowledgeable in regards to domestic violence, I’m capable of helping these people.”

“Sharwline is just an incredibly courageous individual,” says Mike Arsham, executive director of the Child Welfare Organizing Project, which has brought Nicholson on as a board member and an active participant in its efforts to help families assert their civil rights in the face of ACS intervention. She was warned that the city administration under Mayor Giuliani could “be vindictive and punitive,” says Arsham, and was not dissuaded. “Sharwline’s response was: ‘I have to do this. I have to ensure this doesn’t happen to other women. She’s living proof that you can fight City Hall and win.”

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A brutal shock introduced Sharwline Nicholson to New York’s child welfare netherworld. She had been in a long-distance relationship with a man from South Carolina, who used to visit Nicholson and their daughter, 9-month old Destinee, every month in Flatbush.

In January 1999, she tried to end it. He didn’t want to. Nicholson’s boyfriend kicked and punched her, then fled, leaving her with a broken arm, broken ribs and a gashed head. Nicholson called the police, who arranged for an ambulance to take her to Kings County Hospital. Before leaving, she arranged for a neighbor to babysit Destinee and to pick up her son Kendell, then 5, from school.

The next day, at the hospital, she got a visit-not from her kids, but from an ACS caseworker, who had come to tell Nicholson that Destinee and Kendell had been placed in foster care. ACS would later bring formal charges against Nicholson for neglecting her children by “engaging in domestic violence.”

“There was no softness, no comfort, no explanation of where they were. Nothing,” recalls Nicholson. “I was overloaded, my arm in a cast, skull fractured, broken ribs, my kids lost to me. I compare it to kidnapping. I compare it to death.”

Frantic, she insisted the hospital discharge her immediately so she could find and retrieve Destinee and Kendell. Three harrowing weeks went by before she got them back. “It reached the point where I said, ‘Oh, why did I call 911?'”

When a child is taken into ACS’ custody, the agency is required to file a petition in Family Court the next business day so that a judge can decide whether the removal was appropriate. In Nicholson’s case, though, the caseworker didn’t go to court until five days after taking Destinee and Kendell.

By the time Nicholson told her side of the story to a Family Court judge, she hadn’t seen her children for an entire week. That day, the judge ordered ACS to return the children to Nicholson. ACS waited an additional two weeks before sending Destinee and Kendell home.

While other parents might have simply been grateful to have their children back and get on with their lives, Nicholson decided to take the city to task. She retained private lawyers Carolyn Kubitschek and David Lansner to file a civil rights lawsuit on her behalf, after learning about them from a neighbor. Her case, joined with those of others who came to Lansner and Kubsitchek, morphed into a class-action lawsuit.

While the case was in court, Nicholson met Arsham, who had come to observe. He invited her to speak to parents at a Child Welfare Organizing Project meeting and was impressed with her gumption in taking on ACS. On the group’s board, one of her responsibilities is to strategize ways to convince ACS to rethink its policies. “She is not reflexively hostile to this administration, despite everything that’s happened to her,” says Arsham.

But neither is she comfortable with the agency’s daily business: removing children-almost always black or Latino-from their homes, frequently as a precautionary measure. “The city is not readily accepting that there’s a pattern,” says Nicholson. “My goal right now is to awaken everyone.”

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So why would anyone take children away from a mother who’s already been a victim of domestic violence? Technically, Nicholson and other women who’ve been in her predicament have been charged with neglect. ACS’ written policy is that “any ambiguity regarding the safety of the child will be resolved in favor of removing the child from harm’s way.”

That policy was a response to the horrific 1995 killing of 6-year-old Elisa Izquierdo, whose abuse was known to child welfare authorities before she died at the hands of her mother. What’s less well known is that the agency’s response to domestic violence incidents was also shaped by a tragic death that same year. On New Year’s Eve, 8-year-old Justina Morales was killed by Luis Santiago, who confessed on videotape that he was beating her mother when the child walked in between them. He said he hit the girl with his fist and, after she got up, with an aluminum pole.

Domestic violence victims losing their children to foster care is nothing new. Parents lose their children for all sorts of reasons, including drug abuse, mental illness, and neglecting kids’ medical needs; not surprisingly, domestic violence often enters the picture as well. But lawyers representing parents and children in Family Court say that they saw the number of such cases swell after Nicholas Scoppetta took over the agency in 1996. In his ruling, Judge Weinstein concluded that each year, more than 900 victims of domestic violence had their children taken away for neglect. (Advocates for battered women say they’re certain that many more families who have contact with ACS have a history of domestic violence, thousands each year.)

Of the 900, more than 200 were specifically charged with failing to protect children from witnessing violence. In ACS parlance, they were “engaged in domestic violence.” Exposure to domestic violence can be enough to make an investigator decide that a child might suffer physical or emotional harm. But even that is not necessarily essential. When Nicholson was beaten, the children were not witnesses to the violence; Kendell was in school, and Destinee was asleep.

Nicholson’s caseworker would later testify that ACS sometimes removed children of domestic violence victims in order to gain leverage over the mothers-ensuring they would cooperate with whatever demands the agency made as conditions for the children’s return, without having to take their case to court. The worker told the court that ACS sometimes deliberately waited a few days to bring charges, because mothers were usually then inclined to acquiesce.

In his written opinion, Judge Weinstein determined that ACS had an unwritten policy of removing children from abused mothers and prosecuting them for neglect, acts that he said constituted “widespread and unnecessary cruelty.” Both practices, he ruled, are unconstitutional. The agency’s policies, he wrote, stemmed from “benign indifference, bureaucratic inefficiency and outmoded institutional biases.”

ACS does not and has never had a policy of removing the children of domestic violence victims, a spokesperson for the agency maintains.

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New York courts have previously come down more or less in favor of ACS’ view, finding that children can be neglected simply by witnessing domestic violence if it can be proven they were emotionally or psychologically harmed.

But each case, like each family, is unique. Deciding when children are in danger can require child abuse investigators to make a difficult judgment call. It does not lend itself to simple calculations. Some women leave a relationship the first time a batterer is violent; others stay for years. A batterer might not even be violent when the children are in the house, but if such abuse goes on for years it could mean that they are living in an emotionally damaging home.

The problem, say advocates for families, is that caseworkers effectively decide that virtually every domestic violence situation is a danger to children, instead of assessing them case by case. “We want to see a system that evaluates every single case individually,” says Karen Freedman of Lawyers for Children, a group that represents kids in Family Court and was also involved in the Nicholson lawsuit.

The Administration for Children’s Services has received much recognition for its progress since 1997, when it replaced the notoriously troubled Child Welfare Administration. These days, child protective caseworkers are better paid, given more extensive training and carry fewer cases. The number of new abuse and neglect court cases declined from a peak of 11,820 in fiscal year 1998 to 10,382 last year.

Last August, as litigation in Nicholson progressed, the city finally directed its attorneys to stop using the term “engaged in domestic violence.” A memo from then-Deputy Commissioner William Bell and General Counsel Joseph Cardieri said the phrase shouldn’t be used in drafting charges because it “misstates the nature of the victim’s role in the violence and relieves the primary aggressor of his/her responsibility.”

Bell did not, however, direct caseworkers to stop charging battered women with neglect. “It seems to me that we’re not seeing a tremendous change in attitude yet,” says Joanne Sirotkin, one of the lawyers who represented the Nicholson plaintiffs, which include 10 other women. Several are still charged with neglect. “Caseworkers have a punitive response to a lot of mothers.”

ACS had filed a case against one, Sharlene Tillett, after her boyfriend hit her while she was pregnant; its reasoning appeared to be that she neglected her fetus by exposing it to domestic violence. The agency then asked her to go for a psychological evaluation because she had been in two relationships with abusers. “ACS takes the position that battered mothers can be recidivist battered mothers,” says Sirotkin. “The inference wrapped up in that attitude is that you should know that someone’s going to hit you.”

In an incident this past New Year’s Day in Queens, a father assaulted a mother represented by Kubitschek despite an order of protection against him. After the mother went to the hospital she called the police-and ACS’ response was to remove the children on January 16. A Family Court judge ordered them returned home nine days later.

The Nicholson ruling, says Jill Zuccardy, another lawyer on the case, “gives [caseworkers] pause when they have a case involving domestic violence.” But “because they have a mandate leaning to removal…. I’m not sure what they do with that pause.” Zuccardy says a caseworker tried to pressure one of her clients in another case to forgive the father and reunite with him.

More typically, says Zuccardy, women might want to allow the batterer to play some role in their lives, however small, but caseworkers take that as a sign that the children are in danger. “If you file for an order of protection and then vigorously enforce it, they won’t go after you,” she says. “But God help you if you allow him to go to your kid’s kindergarten graduation.

“People don’t understand that women make these balancing acts all the time,” she adds. “These women know what it takes to keep peace.”

For the Nicholson family, peace is still hard to come by. One recent day, cops came to her building and rang all the bells, including hers, to gain entry. When Kendell heard the word “police,” he froze and said, “Oh no, they’re going to take me.”

Even though it was only three weeks, the memory of the separation haunts Nicholson. She herself grew up apart from her mother, who left her to be raised by her father when she was only two. She vowed that when she had children, she would never abandon them. “I thought I would never separate myself from my child,” she says.

While she can’t undo the past, she believes she can at least help other mothers. “I want to let other women realize that, yes, this happened to [me], this can happen to you…but don’t doubt yourself or let anyone tell you you can’t do something.” After Nicholson speaks, she says, parents often make appreciative comments. Some have hugged her. “They’ve told me that I’ve given them that inspiration,” she says, “that all hope is not gone.”