A mother of five in the Bronx, R, took her children to a local McDonald's in March 2010. While there, one of her daughters needed to use the bathroom. As the only adult with five children under 8 years old, R struggled to wrangle all the kids in the same direction. The child who urgently needed the bathroom pitched a full-blown tantrum in the middle of the eating area. The family's conflict was loud and public.
A worker there, alarmed, called 911. When NYPD officers arrived, they arrested R. The children's father was incarcerated at the time, so the children were taken to an ACS office and placed in foster care. R's five children remained in care while the charges of child abuse against R were investigated.
In December 2010, the city's Administration for Children's Services (ACS) determined that the charges against R were unfounded and declined to prosecute a child abuse case. The children, split between two foster care placements, had regular visits with their mother, who by then was staying in a shelter for victims of domestic abuse. All five children repeatedly said they wanted to go home to live with their mom. In October 2011, a Family Court judge urged that the children return to their mother, asking, "Why isn't this happening?" during a foster-care permanency hearing. The issue was real estate. A nonprofit agency charged with finding suitable housing for the family did not secure an apartment in the time-frame the court had ordered; when R later found one within the allotted budget, the agency declined to provide a housing voucher—until R wrote to the agency's director, who approved it. But as of this March, the children were still living in foster care. The family's next hearing is set for late May.
"It's two years, based on nothing," says a mental health professional who evaluated R but was not permitted to testify in her case. Two years is more than half the lifetime of R's youngest child, who was 3 when she was taken from her mother and placed in foster care.
Finding what 's 'founded'
Scene of some of Family Court's most evocative and disheartening episodes, child protective courtrooms hear cases of abuse and neglect, based on ACS determinations that cases are "founded," or substantial enough to prosecute. Children who suffer sexual, emotional, physical or mental abuse may be the subject of child protective cases. So may children who, after at least six months in the care of a foster parent, are freed for adoption when their parents elect or are forced to terminate their parental rights. Rarely, there are voluntary surrenders of children—as when an overwhelmed grandmother comes to the court for relief. This is also the specialty that oversees adoptions.
Children are not routinely present in hearings about alleged abuse or neglect. (They're also absent from most custody and support hearings, although they are front and center in juvenile justice cases.) In child protective cases, judges may speak with children and youth "in camera"—generally, in chambers or another private setting—and consider their conversation equivalent to testimony. This is to protect children from the demands of the courtroom, but while it makes intuitive sense, it also leaves the odd impression of a system that's functioning to protect children without the main beneficiary, the child, involved in the process. It's not the only odd thing about the child protective specialty of Family Court. The rules of evidence, of testimony, of confidentiality and against self-incrimination all differ from those of conventional criminal or civil court. And the testimony that's offered in parts of Family Court can be accepted as sworn testimony—essentially, equivalent to direct testimony before a judge and jury—in criminal and civil proceedings.
Two traits separate the child protection courtrooms from others in the Family Court system. One is the critical and complex role played by ACS. The other is the unique potential for abuse and neglect cases, steeped as they are in sadness, to burn out everyone who comes into contact with them.
Understanding child protective courts requires grasping those distinct characteristics. It also requires appreciating that, as in the courtrooms that deal with custody and support, the caseload in the abuse-and-neglect section is overwhelming—and has been for decades.
Decades of concern about caseloads
In 1987, at the 25th anniversary of the Family Court Act, New York State's chief judge, Sol Wachtler, decried a 300 percent rise in child neglect cases in New York City over three years, from less than 4,000 in 1984 to more than 13,500 in 1987. Wachtler said Family Court was "overwhelmed by a new generation of children more abused and neglected than ever before," with much of the rising tide attributed to the arrival of crack cocaine, linked to a 50 percent climb in abuse and neglect cases.
"There is no more important court in the state than Family Court," Wachtler told a gathering of more than 200 judges in 1987. Yet, Wachtler added, Family Court is "the stepchild of the state system," a vital mechanism oppressed and ignored, suffering overloaded dockets and underfunded operations, and compromising the health and well-being of a generation of city children.
Three years later, the Citizens Committee for Children called on the state to add new judges to the burdened court, declaring, "The Family Court in New York City is under siege."
But no new judges were added in 1990. None have been added since then, despite astronomic increases in caseload; statewide, dockets topped 2.5 million in 2009. Today, many of the children Wachtler worried about are parents with children of their own. The 13,000 abuse cases he lamented in 1987 have swelled to nearly 52,000 in 2010, the last year for which statistics are available.
Judicial staffing in Family Court is the same today as was prescribed in the 1962 Family Court Act: A total of 47 judges are assigned to the five boroughs of New York City, assisted by 38 magistrates to hear cases related to child support, which makes up about 40 percent of the Family Court caseload.
The number of judges and magistrates is set by the Family Court Act. But referees, who hear abuse and neglect cases in lieu of judges (and only with the permission of all parties involved), are employees of the court and can be hired at will, provided resources are available: There are 43 in the city at present. And in every borough, loaner judges borrowed from civil or criminal court sit on the Family Court bench.
These fill-in judges are a mixed bag, lawyers and judges say. Some see Family Court as a step down, with considerably less pizzazz than, say, criminal proceedings in state Supreme Court. But the issue is more than attitude: New judges need to learn the intricacies of family law, a subject many left behind in law school. It takes two years to train a good judge, Richardson-Mendelson says, and by then, loaner judges can be called back to the courts where they rightly belong—and for which they've been budgeted. (Family Court judges earn less than their robed peers in civil and criminal court, so loaners from the better-paid benches strain the budget.)
Starting in the mid-1980s, Family Court had extra help in the form of judicial hearing officers, retired or former judges who served as Family Court judge proxies and gave the court a powerful tool to address a caseload that is near tsunami level. But the JHO program was essentially eliminated in the 2011 budget cuts. There are six judicial hearing officers in New York City Family Court now, compared with 16 in 2011. And Family Court insiders say there's no prospect that their number will increase anytime soon.
"The lack of resources makes Family Court feel like the DMV," Sanctuary for Families' Pennington says, "but the DMV for life's most important issues."
Even political and civil rights progress exerts a toll on the court: Until 2008, same-sex partners with custody or support issues were heard in civil court. But "fair access" legislation that year expanded the definition of intimate relationships to include same-sex partnerships and long-term platonic relationships, resulting in a significant increase in Family Court filings. Family offense filings, which range from domestic violence, harassment and sexual abuse to stalking and assault, have risen 26 percent since 2005—a phenomenon many relate to the death of Nixzmary Brown in January 2006 and the resulting surge in reports of abuse and neglect to ACS. Custody and visitation cases have climbed 22 percent; guardianship filings, 33 percent.
"The increase in family offense filings has been due in large part to the fair access legislation, which recognized the right of intimate partners to file for an order of protection in Family Court," Virginia Gippetti, Director of Data Analysis, New York City Family Court, reports. These account for 17 percent of all order-of-protection filings since July 2011, when the legislation took effect. But while the 2008 legislation expanded the definition of a family, Family Court did not expand: No new judgeships or courtrooms were created to address the rising demand.
Meanwhile, bone-deep economic cuts have eliminated night court, weekend court and overtime for all court employees. The courts are cleared at 4:30 p.m. No one stays late, because no one's permitted—or paid—to do so. Most parents involved in Family Court are not employed, but those who work have to repeatedly take time off, risking their employment, to make court dates.
The grind most profoundly affects children: Family Court statistics document that kids are spending more time in foster care, from 5.3 months, on average, in 2010 to 6.4 months, on average, in 2011.
As children experience longer stays in foster care, the delays in Family Court take a painful human toll. "The longer kids are in care, the more difficult when the family reunites," says mental health professional Harlan Kasseris. "There is no sense of interest, of urgency, in getting a case resolved. ACS just lets things ride."
The grind affects court workers as well. "People have problems every day," one court clerk says. "People are always in crisis. People are emotionally distraught. It's not a healthy environment. You have to rise above the drama that's in front of you every day. Sometimes that's not possible. Certain people do not have the capacity to work in the Family Court environment."
"We're immersed in a world of poverty and dysfunction, of children having children," Pennington says. "You have to think positively: It might be that the system's completely screwed up, spinning its wheels, but what if we didn't do what we're doing?"
The structural conflict inherent in Family Court—are the parties to a case advocates or adversaries?—is most plainly visible in the relationships among three of the major factions that work there: ACS, the judges and the lawyers. And it's most acute in cases of abuse and neglect. In an ideal world, these forces would ally to advance the safety and well-being of children and families. In the real world, however, deep splits and profound mistrust characterize professional relations in Family Court. As one veteran Legal Aid lawyer tells City Limits, "Everybody blames everyone else. ACS doesn't like Legal Aid. Nobody likes the judges. It's always everyone else's fault."
The target of much blame is ACS, which "runs the system," lawyers and advocates repeatedly assert.
"I can see why people may feel that way," Richardson-Mendelson says. "First of all, ACS has a budget that exceeds the entire state judiciary budget. In a season where we're under very serious budget constraints, it may be fortunate for ACS that they are well-resourced agency. With that will come the impression that they have power in excess of the other branches of government," including Family Court.
One part provider, one part prosecutor, ACS decides if abuse cases are founded and should proceed to Family Court. It decides whether to separate siblings sent to foster homes (which some say is essential, because few foster parents are prepared to take, say, five siblings, especially if some are in diapers). It decides who should receive preventive services—like counseling, therapy and homemaking support—and oversees the contractors that provide them. It monitors a family's fragile equilibrium, but the agency's mere presence is enough to send a family into despair, advocates say.
Since 2010 ACS has managed juvenile justice cases as well. Everything in Family Court depends on ACS to a greater or lesser extent.
The agency's amorphous role in Family Court reflects its outsize mandate in city life—but it also complicates the role ACS attorneys play in Family Court. Lawyers who represent children in abuse and juvenile justice cases, along with child welfare advocates, assert that ACS attorneys are more concerned with protecting their caseworkers (and covering their nether regions) than with the interests of children. The agency's mission is to protect children, but the agency's lawyers' job is, essentially, to protect caseworkers—a clear tension between ideal and practice.
When, at a hearing in the Bronx, an 18-year-old mother of two charged with neglect wants her children placed in her mother's care, the ACS attorney opposes her request, based on a complaint against the grandmother's boyfriend in 2000, which ACS investigated and resolved. A decade-old charge thus keeps two children younger than 2 years old in what's unkindly called "stranger foster care" instead of with friends or extended family for at least two additional months until the next hearing date.
And when a mother of two in Manhattan, fighting her daughters' placement in separate foster homes, begs a judge to release them home with ACS supervision, the ACS attorney reminds the judge that the mother has spent time in jail—a 60-day Rikers stint resulting from a dispute with the father of her youngest daughter—and advocates the daughters' continued placement in foster care. The older daughter has twice run away from foster care, taking her little sister with her; both were returned to care but refused to go to school. The younger girl, 9, stopped eating. The case winds on for over a year until a new ACS attorney is randomly assigned to the case and forges a path for compromise. The girls are returned to their mother but lose the better part of a year of school. The older daughter has, since the reunion, become rebellious and angry, her mother says, often lashing out at her mom; the younger girl doesn't want to sleep alone at night.
"ACS attorneys have a dual role," Richardson-Mendelson says, "to counsel their clients and to zealously advocate for their client's position. They have to frankly defend the actions of the agency caseworkers. It's difficult, because the attorney's zealous advocacy seems not to be representing the interests of the children." But, the judge is quick to add, "we are lucky in New York State that children have a legal advocate in the courtroom."
Still, mundane examples of puzzling ACS advocacy abound: One former Family Court lawyer tells of a bizarre hearing in the Bronx that concerned a young teen placed in a group foster home by ACS who, by all appearances, was "shutting down"—skipping school and withdrawing into depression. Her lawyer said the girl wasn't going to school because she did not have a winter coat; the girl herself was not present and did not testify.
The child had been paired with an adult mentor as part of her foster-care placement. The mentor purchased a coat for the child with personal funds and was seeking a refund. ACS, spurning the request, said ACS should in fact receive a credit because ACS placement provided the child with a mentor in the first place. Not only did this matter concern the court for half an hour, the lawyer says, but the funds in question didn't top $50—orders of magnitude less than the money spent in salaries for the dozen or so court staff members, attorneys and caseworkers present.
"The agency was the ACS lawyer's client—not the child," the lawyer says. "How is the system set up so that professional roles get in the way of the right things happening for children? Why do lawyers defend the agency over protecting the kids?" On a broader level, how is the system structured so that many well-educated professionals, each on the city's dime, spend valuable time wrangling over a child's winter coat?
A recipe for burnout
While ACS's broad powers and conflicting roles can be seen as a problem, the limits to the agency's power can also cause trouble. For example, court veterans say that in too many child abuse and visitation cases, parents are granted rights without sufficient remedies for noncompliance. A parent in a neglect case may agree to enroll in preventive services, for instance, to keep her children at home. But there are no immediate consequences if the parent never follows through.
Indeed, those who work for or with ACS point out that the burden on caseworkers is unimaginable, according to New York Foundling head Bill Baccaglini. Many caseworkers arrive to the job fresh out of social-work school. Their academic training has given them a foundation but very little in the way of real-life skills to face the challenges of teenagers squatting in housing projects in the South Bronx, for example, or the reality of a mother of three children, two in diapers, who speaks no English and is bruised and so traumatized after a beating that the children haven't been properly fed or bathed.
Their jobs entangle profound human needs with hyper-bureaucratic processes. Just one example: family team conferences. Advanced by former ACS commissioner John Mattingly, these are meetings in which parents, caseworkers and others involved in a Family Court case (but not lawyers, much to their irritation) gather outside of court to try to resolve differences. "Once the door is closed and the meeting is held, it is a very, very worthwhile undertaking," Baccaglini says. But getting everyone to the table on the same date and at the same time is an arduous task, and it increases what is already an outsize demand on caseworkers' time, as they must be present for conferences, court hearings, testimony and, of course, home visits with families as well as to assign and supervise services.
Burnout among caseworkers is high, Baccaglini says. It doesn't help that caseworkers are under pressure to close cases more quickly. It used to be that 18 months was the allotted time to resolve a case; the current expectation is that cases will close in under a year, on average—a goal that is elusive when the parents involved may have complicating issues like substance abuse or limited mental capacity to understand and navigate court proceedings, much less to file paperwork and show up on time for meetings, hearings and trials.
When caseworkers burn out, the families they work with must absorb yet another round of change: new caseworkers, perhaps a new agency, new locations for services, new home care workers to get to know. A family in distress—in which parents are mentally challenged, for example, or drug use or chronic illness supersedes attention to the well-being of young children—is a fragile structure. A churn in caseworkers does little to build confidence among clients or to help families find ways to live stronger and safer lives.
Lawyers can reach their limits too: All the advocates for children and families that City Limits met with for this project are former Family Court lawyers who left active practice. "There's trauma to working in the system," one Manhattan-based advocate says. "We burn out. We shut down. What we listen to and hear every day—we get desensitized to what's at stake." The most senior Family Court staff, judges, are appointed by the mayor to 10-year terms. The most dedicated jurists continue to serve for decades, if reappointed.
Each judge's courtroom is different. Some judges are diffident and remote; others are bossy and clearly preferential, permitting city lawyers more time to speak and interrupting defenders. Still others seem to relish their role in the court's civic guerrilla theater. Not for nothing did Judge Judy Sheindlin (yes, Judge Judy) serve a score of years in Family Court. Even though judges top the Family Court pyramid, they are outranked (and outearned) by other judges in New York State. They have clerical chores that could be delegated to less-august personnel, and they preside over cases heard in snippets and chunks—15 minutes' hearing in an abuse or neglect case, a half hour's testimony in a juvenile justice trial that continues in half-hour segments over months because the dockets are so crowded.
Judges who don't deliver, court watchers say, are bumped down the food chain. Judges who hear juvenile justice or child abuse or neglect cases whose numbers aren't up to par are moved to custody and visitation—or exiled to another borough.
"Judges are afraid not to be reappointed," one veteran attorney tells us—an opinion that resonates with Legal Aid staffers and attorneys in Brooklyn and the Bronx. Statistics are all-important, "but no one's looking to the quality of the work. It's not to see if good work's being done but to assure speed."
The head of Family Court acknowledges there's little oversight of the quality of judges' rulings. They are independent jurists, Richardson-Mendelson explains; intervening in their rulings runs counter to basic jurisprudence. The real oversight is the appeals process, she says—even though appeals take time and consume valuable resources.
"The burnout is not just because of the culture of the court. We're dealing with really difficult issues every day—remember that people are coming to Family Court in crisis—and that can wear on you," she says.
Six more weeks
In a courtroom in the Bronx, two lawyers stand before a judge, arguing whether a child in foster care can be "paroled" back to her mother's home, under ACS supervision, as the mother's lawyer requests. The ACS attorney charges that the child will be at risk if she is returned, citing a temporary order of protection against the father, which the mother swore out. (Domestic violence in the home prompted ACS to place the child in foster care. The father was arrested.) The order of protection, designed to keep the child and her mother safe, is offered as evidence of imminent risk, in a kind of domestic violence catch-22: An order of protection, designed to secure a family's well-being, announces their vulnerability in open court. Additionally, the ACS lawyer says, the father was involved in a separate domestic violence incident years earlier, in Japan.
The judge, listening to the lawyers speak as she shifts papers in a manila folder, snaps to: "In Japan? What do we know about that?" The ACS attorney says he is investigating the matter—with no details as to how that investigation is proceeding or what has been learned. There is, he admits, no paper trail of domestic violence overseas. He says he's not sure of what actually happened.
The judge asks if the child wants to see the father. The ACS caseworker, after a whispered conference with the ACS attorney, says she did not ask the child. The judge asks the caseworker and the attorney what happened after the father was arrested. The caseworker does not know whether the father is still in detention or has been released.
There is too little information to rule; the judge puts the matter over for another hearing in six weeks, during which time the child will remain in foster care.
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