Q&A with Family Court’s Top Judge

Edwina Richardson-Mendelson, New York City born, bred and schooled, has dedicated her entire legal career (minus one year) to Family Court, as the first attorney hired by Sanctuary for Families, a pioneering program to support victims of domestic abuse; as an 18B lawyer, representing indigent clients in Family Court; as a court referee, judge and administrative judge; and since 2008, as the chief Administrative Judge of New York City’s Family Court. Notably, Richardson-Mendelson supervised current ACS head Ronald Richter when he was a judge in Queens Family Court.

Helen Zelon: We’ve learned from different sources that seven or eight seats will be open on the Family Court bench next year. Is that correct?

Edwina Richardson-Mendelson: My count is eight at this time. Not all are [official] Family Court judges; some are on loan. And some of the judges who are on loan were really permanent in Family Court. There’s one in the Bronx on a criminal court line who has never served in criminal court.

HZ::Why is a judge who sits in Family Court on a criminal court line? Is it budget-driven?

ERM: Not necessarily. There may have been an opening in criminal court, but not as much need there – or the person is experienced with Family Court, but there were no Family Court lines [for new judges] at the time.

The recognition has been long-standing that we need additional judicial resources in our Court. We thought we were coming close to having more judges in 2008 [after the LINK Sampson report on Family Court]. It really felt as if it was going to happen, but it didn’t.

HZ:: Lawyers for Legal Aid and on 18B panels have said that ‘judges are the elephant in the room’ – they assert that too few judges on the bench stymies their work and slows the overall workings of Family Court.

ERM: It’s critically important that we keep trying to thrive in the absence of judgeships. I really do believe that court administrators recognize that we’re suffering in Family Court.

HZ:: How do you think cutting back the Judicial Hearing Officer program has affected the Court?

ERM: Quite frankly, we made some difficult and painful decisions as to who should stay and who should go. The recognition that we could keep some judicial hearing officers [while cutting others], for example, is recognition that we’re in trouble.

It’s difficult when we have judges on loan from other courts. We’re grateful to have them — we learn from them and train those inexpert in Family Court. Many serve greatly. But it is difficult to serve our community. When a judge is there for two years, you train them, they understand the cases and the community – but they say “so long,” and we start over with a new judge.

HZ:: Do you think that former Chief Judge Sol Wachtler’s observation a quarter-century ago, that Family Court is the stepchild of the state’s legal system, still holds true?

ERM: I don’t see it that way. My leaders, they understand that we are suffering and struggling. We deal with very, very difficult cases and we are under-resourced. I think they recognize that. My job, as the leader of this court in this season, is to continually advocate for resources – and also to make sure we’re doing our best with the resources at our disposal. Aristotle said, ‘We are what we repeatedly do.’ Quality is not an act, it’s a habit.

It’s over 20 years without new judges to Family Court. Our hope is the crisis will end, and we will be able to resource our court.

HZ:: How is it that so much good talent is chewed up in the Family Court churn?

ERM: This is difficult work. Even if you fully resource us, you will still have children who die. Children I’ve released have been killed–where everyone consented, agreed that this would be the best outcome. Children die. That’s difficult work.

The burnout is not just because of the culture of the court. We’re dealing with really difficult issues every day. That can wear on you.

HZ:: How does Family Court deal with increasing caseloads despite budget cuts and limited personnel? How can the court do more – with fewer people and less money?

ERM: Overall, even though we have more cases, we’ve increased our dispositions. Our data indicate that we are doing a better job recently in terms of how we handle our cases. For example, in child protective proceedings, in 2008, it took 11.5 months citywide to reach disposition. In the first quarter of 2011, [that] has gone down to 7.3 months.

All of the judges and stakeholders are trying to do a better job. We’ve not thrown up our hands in the air, or said ‘We can’t do this.’ We still look at system and try to make improvements.

HZ:: During CL’s observations, very few cases reached resolution. Most were taken up in 15 to 30-minute segments, then rescheduled weeks out, protracting the time kids spend in foster care, for example. How does the Court address that issue?

ERM: Trials by the teaspoonful shouldn’t happen. But it doesn’t, everywhere. In Queens Family Court, in the child-protective arena, some parts hear trial-ready cases day to day. You can get your trial in a week, starting and finishing in a week.

[But, Richardson-Mendelson noted, this is an exception, not normal practice at Family Court citywide. ]

HZ:: So many people represent themselves in Family Court. How does pro se representation speed or encumber the progress of individual cases?

ERM: Pro se representation is complicated. Civilians don’t know the techniques. The burden is very high on civilians.

We’re a due-process-driven court of law. We have to comply with a court process. But people are under-represented in legal proceedings.

The right to counsel is limited to the truly indigent – otherwise, you have to hire an attorney. I couldn’t hire an attorney without going into debt, and I’m a judge! But cases go smoother if they are represented by an attorney. There are ways to bring in information that an attorney knows how to do.

We don’t have universal counsel: We have a help center. We have the volunteer attorney program, which gives people half an hour with an attorney. We are trying to provide access to justice as best we can. Faced with the reality that we don’t have a universal right to representation at this time, it takes longer to process cases.

HZ:: Will Family Court ever evolve beyond specialization and go back to the practice of one judge hearing all matters related to a single family?

ERM: We have not operated in that fashion in Family Court in many years. When I first started practicing, all judges handled all types of cases. We are not able to function in that way because of the pressure of the cases: If a judge had three juvenile delinquency matters, ten child protective matters and ten orders of protection in one day, most people would be waiting all day.

We’d be in far worse shape, in terms of trying to get through the course of a day, trying to get the right people in the room at the same time.

HZ:: But wasn’t specialization meant to streamline the process, and speed dispositions? How has that worked?

ERM: It hasn’t worked out that way – it’s an apples-and-oranges comparison. The law wasn’t as complicated before people specialized. The law has changed dramatically, and the obligations of the court have changed tremendously as well.

Our legal climate has changed a great deal. There are many more requirements placed on judges and referees: Cases are staying on calendar from the time it they are filed until permanency, no matter how long it takes.

HZ:: Some judges have told City Limits that they feel pressure to close cases, because somebody’s counting.

ERM: I’m probably responsible for some of that pressure, because I recognize, we are counting. We’re in a society where data and information are important, and we serve the public.

We’re not just crunching numbers; at the end of every case is a human being.

Remember that people are coming to Family Court in crisis. If they’re coming, we have a responsibility to try to serve them – it’s not just, you have 5 minutes and go. It disturbed me in practice to hear clients for 5 minutes. Everybody’s working hard, but are we serving our community in the best way?

HZ:: What’s the balance of power at Family Court? Lawyers and judges repeatedly say that ACS has an outsize influence.

ERM: I can see why people may feel that way. 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 that ACS is well-resourced. With that will come the impression that they have power in excess of the other branches of government.

From my perspective, we have a quarter-million petitions filed every year, involving 55,000 families. … Child protective cases are 22 percent of our filings, and use 30 percent of our resources – they [ACS] are a litigant, they are part of the executive branch of government, and one of many litigants in court.

But they have a role that’s different from the average litigant. As they are also the presentment agency, they have the obligation and responsibility to provide services to the family. Not only are they present with burden of proof, they are the service providers – not to mention they’re responsible for child care, and a new role, in the juvenile justice arena.

They’re important, but I don’t see them as being more powerful, although I understand the perception.

HZ:: Some say ACS attorneys represent caseworkers, not kids.

ERM: It’s their job to represent caseworkers. ACS attorneys have a dual role; to counsel their clients, and to zealously advocate for their client’s position. It’s difficult because from other perspectives, the attorney seems not to be representing the interests of the children – but we are lucky in New York that children have a legal advocate in the courtroom.

ACS lawyers have the burden of proof, and have to quite frankly defend the actions of the agency caseworkers. If the process works as it should, justice will prevail.

HZ:: Is it part of your job as Administrative Judge to monitor the quality or integrity of Family Court judges’ decisions?

ERM: No. Family Court Judges are independent. It is never appropriate for a supervising judge or for me to second-guess the decision-making that goes on in the courtroom. I could disagree with a ruling, but as an appointed or elected official, that’s the judge’s job. It would be unethical to discuss.

The greatest oversight is the appellate process. If the attorneys don’t like a decision or disagree with outcomes, they have the right to appeal. That is the oversight that our judicial system has, as exists in housing court, criminal court, and civil court.

HZ:: How have you not burned out? How do your colleagues, on the bench and lawyers in the courtrooms, sustain the job?

ERM: Because we do it so often, and we have to get through the course of the day, if we were to become emotionally involved we wouldn’t be able to function and do the jobs.
But we should never lose sight of what the stakes are and how serious the cases are.

HZ:: If you had limitless resources of money and influence to inspire change, what would you do?

ERM: Let’s start with my true priority: more judges in each of the counties to do the work. It would require what we would need to support the judges – personnel, too. Family Court is rare, in that every order is drafted by someone who is paid by the Family Court, not by attorneys. We need the back-office staff to do this work.

Next, we need the facilities to accommodate these judges – the appropriate space to be able to serve our communities.

Creating additional judgeships requires that we finance, support and resource agencies and attorney firms that serve in Family Court: more courtrooms need more lawyers. The attorneys and other agencies that appear in court need to be equally well-staffed and resourced.

Finally, I want there to be sufficient social services in our communities, in all of the different languages, services that are culturally competent, where people don’t just get a lecture, take a test and pass, but receive rich types of services that can actually assist them in improving their lives.

HZ:: City Limits observed entrenched, multigenerational poverty everywhere in Family Court. Can the Court address this kind of foundational issue?

ERM: It is daunting. I desperately want to make the experience for people who appear the best experience a court can provide, but the issues that people are experiencing are really deeper than the court can address.

Family Court as a court of law can do its job better. But at the base of many of our most difficult cases is poverty – and Family Court can’t fix poverty.