When Delays Dominate, Kids Lose

Print More
Susan Angel and her daughters Anny (L) and Imogen, who were placed in foster care during a family dispute.

Susan Angel and her daughters Anny (L) and Imogen, who were placed in foster care during a family dispute.

E lives in Manhattan with her 6-year-old son M. She has an older child from a previous relationship—a daughter in her 20s, living out of state—and M was born during a decade-long romance. The couple lived together briefly before and after their son’s birth. E (who, like other family members we profile in this text, we are not naming so as not to pollute ongoing cases) is currently unemployed but wishes to relocate to her home state, where she and her child can live with her parents and where she has an offer of full-time work. But before she can move, she must obtain the permission of Family Court—permission that her former partner, who is representing himself without a lawyer (or “pro se”), will not grant.

E first came to Family Court in 2008, when M was 2, to obtain an order of protection against her child’s father, who had left in anger. He taunted E with threats to spirit away their son to an undisclosed location out of New York State. E learned she had to file for custody and support, beginning what has become a nearly half-decade’s pursuit. Obtaining a support order, which provides for M’s well-being, took nearly a year.

E petitioned the court for permission to move out of state—which would affect her custody arrangement with her estranged partner—in November 2009. The case proceeded through June 2010, when it was continued until September 2010. When E returned to Family Court that fall, she learned that the referee hearing the case had been transferred from Manhattan Family Court to Brooklyn Family Court, and a new referee had to be assigned. A new hearing was set for June 2011—a year and a half after E’s first petition.

E’s child’s father has repeatedly filed petitions and motions to delay the case, according to E. (The court does not limit the number of petitions parties may file on their own behalf.) She in turn has filed petitions to protest missed child support payments and other matters. Confusion and deception over a complicated inheritance in the child’s father’s family—his income affects the support he is ordered to pay—has meant protracted hearings and additional delays. Absences in court by the child’s court-appointed law guardian have added extra months of adjournments.

The court’s protocols became part of her adversary’s strategy. Under Family Court rules, if a civilian appears at a hearing without a lawyer, he or she is asked by the judge if the person wishes to proceed pro se or prefers that a lawyer be obtained. If a request is made for a lawyer, the hearing is rescheduled four to six weeks out.

Protocol permits this process to repeat up to three times before the actual proceedings begin—months of time, treading judicial water. At every new hearing, E says, her son’s father asked for a lawyer, for each of the three allotted times, adding up to six months of stalling time to each proceeding—and it’s all quite legal.

Both court and agency

Family Court exists to advance and protect the rights and safety of children. It is meant to operate “as a special agency for the care and protection of the young and the preservation of the family,” according to the Family Court Act, adopted by the New York State Legislature in 1962. “Our focus is the child. We’re here to protect the children,” says 27-year Family Court veteran Joseph Radice, first deputy clerk of Manhattan Family Court.

The court is distinct from criminal and civil court. It is a kind of hybrid, containing elements of each judicial model. Civil matters like child support and custody are heard and settled in Family Court. So are cases that deal with child abuse and neglect, domestic violence, and crimes committed by the young.

Both fish and fowl, civil and criminal, Family Court has a mandate that toggles between advocacy—for the children and families whose cases populate the court’s dockets—and adversarial contests in which the meting out of justice means a win for one party and a loss for the other.

Family Court actually operates like four court systems in one, with separate courtrooms for cases involving alleged abuse or neglect of children, custody and visitation rights for parents, child support, and juvenile justice. Of the four specialties, the most heavily used are, curiously, the lowest profile: The courtrooms that address issues of custody and support together hear nearly three-fourths of all Family Court cases each year.

Together, the four Family Court tracks annually handle more than 80,000 cases, on average, in New York City. A case, of course, can include multiple children, so the caseload is only a rough measure, and most likely an underestimate, of the total number of children in Family Court’s orbit.

Amid that massive caseload, waiting is elemental. Cases called for the morning may be heard hours late if more urgent matters arise—or put over until after the official lunch hour, from 1 to 2 p.m., if the morning docket runs long. Cases can be called only to be adjourned when a lawyer, social worker or a law guardian representing the child is busy in another courtroom in the building and misses the “time certain.” Cases can also be called and adjourned when paperwork is missing—which is often—or when witnesses haven’t been properly served or opposing lawyers disagree as to the purpose of the court meeting: hearing or trial.

For example, in a juvenile delinquency hearing in Manhattan, a 15-year-old-boy in a blue flannel shirt charged with robbery and threatening a witness watches in silence as the city’s attorney asks the ACS caseworker for paperwork. The caseworker has the original document but no copies, so a clerical worker is sent off to make them.

The prosecutor, waiting in turn for the documents, says to the judge and the defense attorney, “Let’s do the fact-finding before the disposition.” (In juvenile delinquency proceedings, dispositions are the equivalent of trials.)

The defense attorney looks up from his stack of folders and says, “This is technically paroled”—because the boy is already in detention—”We’re not on trial today.” The judge looks shocked: “Are you telling me you’re not ready?”

The defense attorney explains that the case was not scheduled for trial today. The prosecutor interrupts, saying, “We had extensive discussion at the last court date,” and that the defense attorney complained then that the time allotted for the current session, 45 minutes, wouldn’t be enough time to present the evidence.

The defense attorney, shocked, says, “That’s not true!”— accusing the city lawyer of making up the prior conversation. The prosecution appeals to the judge: “It’s very simple, Your Honor, a one-witness trial.”

The judge, frustrated, says, “This is a very serious case,” but adjourns the trial, to resume in another week. As the hearing ends, the boy, unprompted, puts his hands behind his back. Two armed officers step to his right and his left; the one on the right clicks on handcuffs, and both uniforms walk the boy through a door at the rear of the courtroom, back to detention, where he will wait for the newly scheduled date.

A common lack of counsel

Family Court is a court of the poor, insiders and advocates agree. Its role is essential: Anyone can come into Family Court and file petitions for free, seeking an order of protection against an abusive or violent partner or parent (or child), or requesting custody and financial support. “If there was no Family Court, our clients couldn’t do anything,” says Hannah Pennington, who left a career in corporate law to work with Sanctuary for Families, which provides legal help to victims of domestic violence and their children. Family Court is often the only resource the poor may access for free in the face of violence and neglect. But the flip side of the ease of entry into Family Court is that professional guidance is hard to find. Proceedings in Family Court involve a unique choreography and a specific vocabulary. They require that parents, who often come to the court seeking guidance, master the lingo or risk profound confusion.

Participants are permitted to represent themselves pro se in Family Court cases involving custody, visitation and support, which comprise three-fourths of the court’s docket. And in those cases, the overwhelming majority do represent themselves: Some 85 percent did in 2009. But most people don’t have the legal skills a lawyer does; pro se proceedings consistently take longer and have more detours. Help centers in Family Court buildings walk neophytes through the process.

It’s a long wait, though, to meet with an attorney or staff member who can explain paperwork, court calendars and how documents are served on reluctant, elusive or potentially violent partners. Additionally, volunteer lawyers donate their time, in half-hour segments, to help people understand their options and choices. (The volunteer lawyers have limited impact: According to Family Court statistics, they met with more than 7,000 people from 2006 to 2010, a period during which Family Courts in New York City heard more than 400,000 cases.)

The racial imbalance that characterizes poverty in New York City is plainly visible in Family Court. Black and Hispanic youth are the subject of more than 90 percent of Family Court cases. Black children, who make up 28 percent of the city’s youth, represent more than half of all children in foster care and nearly two-thirds of youth detained in juvenile justice cases. White children, who represent a comparable segment of the total youth population (26 percent), make up less than 4 percent of children in foster care and just over 3 percent of those detained in juvenile justice facilities.

The Family Court bench is more diverse than others, but it remains majority white. Family Court judges are expected to be generally conversant in all family law, but they usually specialize in a particular area. A single child’s case may fall within two or more Family Court specialties or even cross over into civil court, with no mandate that Family Court and civil court cases proceed sequentially.

While intimate companions in life, custody and support are distinct specialties in Family Court. Because the proceedings are separate, judges lack the full dossier on every case they hear. Testimony on one parent’s drug abuse, for example, offered in a custody proceeding, is not automatically shared with the magistrate who will determine support. Whether the information “comes in” or not depends on a lawyer’s assertiveness—if a parent is represented (most are not). Pro se parents must be willing to insist that information be documented and submitted in all relevant Family Court parts. It’s not required, and not every participant has the stamina or savvy to aggressively share information across parts. Many judges acknowledge, on the court record and in private, that they make decisions with only partial knowledge of a family’s situation.

Endemic delays

Family Court is “where time frames fall off the edge of the world,” according to one advocate with decades of experience.

Cases can stretch for years. Of the 80,000 Family Court cases in 2010, nearly 17,000 were active for longer than 180 days. Six months may be a drink of water in judicial time, but 180 days is a lifetime for an infant or the better part of an academic year for a grade-schooler.

A chronic shortage of judges is part of the challenge facing Family Court, one that is unlikely to be overcome in the current budget atmosphere. Court authorities say eight Family Court judges will step off the bench in 2012—that’s nearly 20 percent of the 47 city judges mandated by state law. No one can say if or when new judges will be appointed.

“We thought we were coming close to having more judges in 2008, but it didn’t happen,” says Richardson- Mendelson. “I really do believe that court administrators recognize that we’re suffering in Family Court—that we are under-resourced. I think they recognize that.” But the challenge today, the judge explains, is to function with less: fewer judges, less time for cases and less money. “It’s critically important that we keep trying to thrive in the absence of judgeships.”

Even as the courts swim upstream in a river of cases, important evidencebased services with proven records have been gutted in the Cuomo era. Child permanency mediation, for example, permitted hundreds of families to resolve sensitive cases outside the courtroom more quickly, more cheaply and, advocates say, more humanely than through formal court proceedings. This program was cut entirely in the 2011 budget.

One youth-justice advocate compared Family Court to an inner-city emergency room, where gunshot wounds outrank influenza and a person suffering quietly in a corner might perish waiting for help amid the melee of urgent, high-demand trauma. In Family Court as in medicine, high-stakes cases necessarily take priority over more mundane, yet vitally important, proceedings. Life and death must come first: Children at mortal risk or those charged with serious crimes merit swift attention. But the majority of cases are more like the flu—potentially dangerous but hardly dramatic. “Due to limited resources…proceedings vital to the lives of children, families, domestic violence victims and other at-risk New Yorkers are either delayed or cut short,” a New York State Senate report on Family Court stated in 2008. “[M]atters necessary to provide children with safe and stable homes might be allowed as little as five minutes because there are simply too many cases.”

In hundreds of hours of City Limits‘ observations in Family Court parts in Brooklyn, Manhattan and the Bronx, we saw very few issues or cases reach resolution. The overwhelming majority of child protective and juvenile justice hearings were stalled by procedural and personnel gaps, each time leading to delays of a month or more before the proceedings could be rescheduled.

Missteps in procedures are inevitable when lawyers and caseworkers are expected to shoulder the burden of heavy caseloads: Paperwork is mislaid; copies aren’t made; documents that should have been filed in January turn up unfiled in March.

In one instance in Manhattan, a lawyer for the city failed to serve official documents despite an order by the judge that had been issued two months prior. “I didn’t realize it was so important,” the lawyer told the judge, who ended the hearing in frustration and rescheduled it for May—five months after her original order. In the Bronx, a physical search for a caseworker and a subsequent paper chase for referrals to psychiatric services took so long that the half hour allotted for the hearing ran out. The family arrived in court, waited to be heard and was sent away, with a new date six weeks distant. (In each of these cases, rescheduling appearances took on a near comic quality, with judges calling out dates like bingo numbers and lawyers announcing their conflicts, obligations and vacation schedules.)

But some say the delays aren’t always innocent: According to one mental health professional who has testified in numerous court cases and dedicates two days a week to working with Family Court parents, “This is a way to get even. Anyone in the system can use it if they get annoyed or angry with the parent. In response, kids stay in foster care longer, sometimes another three to six months,” because attorneys—whether they work for the the Law Department (which prosecutes juvenile justice cases), for ACS or for the client child and family—or caseworkers who intentionally delay proceedings face few consequences beyond a possible scolding from the bench.

These cases can stretch for a year or more, as multiple petitions give rise to hearings, each weeks apart. The proceedings tend to grind on long and slowly—even as the children ostensibly at the center of the cases grow up.

‘They will beat you down’

“I could be living with my parents, where I’m loved and supported,” E tells City Limits. “I could save money and rebuild our lives. But I have to figure out how to pay rent,”—which has just gone up, prompting another petition by E to increase support payments (and a tandem counter-petition by the father to decrease support, based on his own financial straits.).

According to E’s records, she has appeared in court 43 separate times since 2008 to pursue custody of her son and has additionally testified in nearly 20 support hearings—before different jurists because the first referee was reassigned and because custody and support are separate Family Court specialties. The magistrate and referee who hear her cases may not be aware of petitions that her former partner has filed in the other part; their knowledge is limited to their own part. So, for example, a court-ordered mental health evaluation of the child’s father obtained as part of custody proceedings is not shared with the support magistrate. The father’s request to decrease support is not part of the custody hearings. Each new filing means another trip to court—and another afternoon of child care for M.

“This place, they will beat you down with waiting,” E said, while waiting for another support hearing on a sunny March afternoon. In mid-April, E was awarded custody—but denied permission to relocate, mooring her to New York City until her son is 18. The referee who decided the case did so on a Tuesday and retired that Friday. E’s child support case is ongoing.

To read the next chapter, click here

Leave a Reply

Your email address will not be published. Required fields are marked *