Adi Talwar

New York County Family Court at 60 Lafayette Street. New York City’s family courts went virtual last week but they are operating in triage mode with currently only one virtual court and a very limited number of judges.

The child-welfare system entered Shanae Johnson’s life after a parent’s greatest tragedy: the accidental death of her son. A judge ruled that she and her husband had been neglectful when they left him in an empty tub for a few minutes, though they were still in the bathroom drying his older brother when he choked on his spit-up and died, Johnson says. “Everything happened very, very quickly,” she adds. The system placed their oldest son with his grandmother in New Jersey; their youngest son, born subsequently, was removed at birth and placed in a foster home in the Bronx. 

Over the past year and a half, Johnson and her husband worked to show the courts their devotion to their children. Before Covid-19 struck, they’d visit their oldest son, now 3, one day a week at the Harlem office of Children’s Village, the agency overseeing their case. They’d go to the park, play superheroes, indulge in the all-you-can-eat buffet. The next day they’d visit with their youngest son, 8 months old. A third day, the whole family would gather at the Harlem office to get their weekly taste of what it would be like if they had the luxury of being a normal family.

Johnson hoped that before the year was out the court would allow her family to be together again. But since COVID-19 has shut down the city, Johnson and her husband have had to stop all in-person visits. Nobody knows when they will start again. With family court functioning virtually and with the overwhelming majority of cases being adjourned, for at least three months but perhaps for far longer, Johnson also doesn’t know how her case will progress or when her family will be able to be permanently together.

New York City’s family courts went virtual last week but they are operating in triage mode with currently only one virtual court and a very limited number of judges. All but a tiny fraction of hearings have been officially adjourned for at least three months, but advocates for children and parents say that with an ever-growing backlog of cases, they’re concerned that the wait might be far longer, and that delays might keep families from reunifying not just for months but for years.

Playing Whack-a-Mole

As the country struggles to catch up with the ever-growing Coronavirus crisis, child-welfare systems are racing to find their own solutions to wrenching ethical and practical dilemmas over how to safeguard the psychological well-being of children in foster care and the rights of families while protecting the physical health of children, parents, foster parents, staff and the community at large. The stakes are particularly high in New York City, which has committed itself to maintaining parent-child contact whenever possible for the nearly 8,000 children currently in foster care even as the city becomes the epicenter of the worldwide health crisis. 

Betsy Kramer, director of special litigation and policy at New York City’s Lawyers for Children, described the situation like a game of Whack-a-Mole. Every day new and unexpected issues arise, from how to protect the physical safety of children in congregate care who live in close quarters and are overseen by staff who come and go daily, to how to ensure that older youth scheduled to age out of care in the coming weeks are allowed to stay in their homes, to how to balance the risk of child abuse with that of the potential spread of COVID-19 caused by caseworker visits. For now, much casework contact is being made by phone or video instead of in person, but Jeremy Kohomban, executive director of Children’s Village, says his staff continues to show up in person whenever they are unable to make phone contact or in cases deemed higher risk. They do so despite the potential danger to themselves, their own families and to other staff and clients. So far, Children’s Village has had one confirmed case of COVID-19 among its staff. Filings of suspected child abuse and neglect are are far lower than is typical, likely in large part because school is out and children aren’t interacting with mandated reporters.   

Perhaps the most critical question in both the short- and long-term is how long child-welfare cases like Shanae Johnson’s will be stalled in family court, and even whether cases needing priority attention will be adjourned. 

“The courts claim they do not have the capacity to hear emergency applications for the return of children from foster care in existing cases and it remains unclear whether they will hold emergency hearings in newly filed cases in the one city-wide virtual courtroom. This will delay reunification for thousands of families across the city. In Brooklyn, hundreds of children are going to remain separated from their families indefinitely as a result of the court’s reduced capacity,” Lauren Shapiro, director  of Brooklyn Defender Services Family Defense Practice wrote in a statement to City LImits.

“Kids want to know, ‘Is this going to prevent me from going home and for how long?’” says Kramer, adding that children in foster care should contact their lawyer if they need help. “We are prepared to take emergency action in court to protect our clients’ rights,” she says.

Visits: balancing risks

In the day-to-day operations of child-welfare agencies, the most pressing concern is how to handle parent-child visits, also known as family time. Many jurisdictions around the country have suspended all in-person visits between parents and children in foster care indefinitely. In contrast, New York City’s Administration for Children’s Services has issued guidelines that recognize the potential for permanent psychological harm if children are unable to see their parents and siblings, especially during a time of crisis, and call for continued in-person visits in lower risk cases, based on guidance from public health officials. 

“ACS and our provider agency staff are part of the essential workforce that is carrying out our mission to protect children and support families, and we continue to put protocols in place to help our child welfare provider agencies carry out that mission safely,” said Chanel Caraway, spokeswoman for ACS. “For many families, particularly those who may be especially isolated in this stressful time, the need for frequent communication between parents and children in foster care cannot be overstated.” 



Read our coverage of New York City’s Coronavirus crisis.

But without access to testing, determining who should be allowed to visit requires difficult case-by-case determinations. The Council for Family and Child-Caring Agencies, which represents child-welfare systems across the state, has requested that child-welfare-affected families and workers be considered a priority population when it comes to testing and protective gear. But Mary Jane Dessables, COFCCA’s director of information, research and accountability says everyone understands that currently, such equipment is just not available. “I think if the state had it, they’d give it to us,” she says.

Complicating matters further is the fact that many child-welfare-affected families and staff working in the system come from neighborhoods with high rates of asthma, diabetes and other pre-existing conditions that put them at greater risk of serious complications from COVID-19, while many foster parents are elderly. In addition, supervised visits have historically happened with multiple families together in one visiting room at child-welfare agencies, where social distancing is difficult if not impossible. The ACS guidelines, by contrast, require adherence to social distancing protocols for meetings and family visits in agency offices, including using large rooms with open windows and staggering visit times.

Even when visits take place in the community, often they’re in public places such as libraries or McDonald’s that are no longer options. It’s a dilemma not just for child-welfare agencies, but for parents, too, who long to see their children but who also worry about putting their children’s health at risk, especially if they need to travel on public transportation to and from visits.

Faced with these challenges, advocates say they are concerned that some agencies have summarily ended all in-person visits despite ACS’s guidelines. Sarah Goldstein, a social worker at Brooklyn Defender Services, described a case in which reunification was imminent and in which the child-welfare agency had discretion to release the children back to the parents on trial discharge. Instead, she says, the agency “said that visits entirely have to stop.” “Even clients who were having unsupervised day visits or overnight visits have seen their contact changed in pretty significant ways,” says Tehra Coles, litigation supervisor at the Center for Family Representation, which represents parents in family court in Queens and Manhattan. 

Unique collaborations

At the same time, with the courts all but closed, people interviewed for this article say they’d also seen some unusual collaboration between agencies, advocates and ACS and efforts to find creative solutions.

Chris Gottlieb, a professor at New York University’s Family Defense Clinic, shared the case of three small children in kinship foster care with their grandmother. Grandmother and mother lived just a few blocks apart, but before the Coronavirus struck, they’d been required to travel to the agency for visits so that the mother could be supervised briefly by staff before she was allowed to go out into the community to spend time with her children unsupervised. In response to the threat of COVID-19, Gottlieb says, the agency offered to make pickup and drop-off at the grandmother’s house rather than cut off visits or potentially expose the family to the virus during travel. “It was their suggestion,” says Gottlieb. “We didn’t even have to advocate for it.” 

ACS guidelines also encourage video visits. Wanjiro Geithaga, co-director and social work supervisor at the Center for Family Representation, says they’ve been asking for clients to get face time with their children every day to alleviate the impact of not seeing their parents in person. But many parents lack the technology that would make such visits possible. Some parents only have flip phones. Many typically use Wi-Fi in public places they can no longer access. 

ACS says it is working closely with provider agencies to ensure that families that need a device in order to do remote visits and video conferences get one and that providers are authorised to purchase technology to support tele-visiting.

Kohomban says he went on Amazon recently and purchased all the tablets he could to increase families’ video visiting capabilities. But he continues to doubt whether video visits will be a real option for many families in the near future. Many agencies lack cell phones and laptops even for their staff, Dessables explained. “Just like it’s hard to get 40,000 ventilators in a time of crisis, it’s hard for agencies to go virtual when the barebones of technology is not funded in the first place,” she says.

And video visits can’t make up for families spending time together if the crisis drags on for many more weeks or months.

A couple of weeks ago, the medical staff of Children’s Village started calling parents with children in foster care to talk to them about COVID-19 and the risks involved in seeing their children. With the dangers front and center, Kohomban estimates that fewer than 5 percent of parents requested in-person visits this past week. But if the crisis continues, he says, he believes it would be inhumane to keep children and parents apart. 

ACS has put in a request for personal protective equipment to the New York City Emergency Management. In the meantime, over the weekend, Kohomban bought 1500 full body disposable rain ponchos. “If I can get my hands on goggles and gloves,” says Kohomban, “I’m going to ask the Department of Health to give us permission to start having regular visits again with parents and children enclosed in plastic.”

Laughter and worry

Johnson and her husband were lucky to already have an app on their phone that allowed them to video visit and guardians willing to make those visits happen daily.

The couple is trying to make the most of those sessions, laughing with their children as much as possible. Their 8-month-old likes to “see his little fat face in the camera” and chew on the camera, Johnson says. “He sees me and his dad and he starts to laugh and giggle and play.” When they see that their 3-year-old is no longer paying attention to the camera, they know that’s when it’s time to get off the phone. 

Still, Johnson is concerned that if the physical separation drags on, it will take a toll on the bond she and her husband have with their 8-month-old. She is even more concerned about the psychic impact on her oldest son. “Knowing the system as well as I do,” she says, “I know he can start to think that his parents are not going to come back or that he’s never coming home. He might think, “Mommy and Daddy don’t want to come back.’ Babies can lose that love very quickly if they’re too hurt.”