HIGHLIGHTS OF JUDGE WEINSTEIN'S DECISION

PROTECTING BATTERED MOTHERS AND THEIR CHILDREN FROM ACS

It took 184 pages for U.S. District Judge Jack B. Weinstein to fully detail the injustices perpetrated against battered women – and their children – by the Administration for Children's Services, which routinely tore children from their mothers just because those mothers had been beaten by husbands of boyfriends. The full decision in the case of Nicholson v. Williams is available at http://news.findlaw.com/hdocs/docs/nyc/nchlsnwllms030102drft.pdf  

As the highlights below indicate, the Judge made his outrage clear from his opening paragraph:

The evidence before this court reveals widespread and unnecessary cruelty by agencies of the City of New York towards mothers abused by their consorts, through forced unnecessary separation of the mothers from their children on the excuse that this sundering is necessary to protect the children.   The pitiless double abuse of these mothers is not malicious, but is due to benign indifference, bureaucratic inefficiency, and outmoded institutional biases. [P.11] .

He returned to the theme toward the end:

It desecrates fundamental precepts of justice to blame a crime on the victim. [P.167].

In page after page in between, the judge flatly rejected the city's claim that it was even trying to help children, repeatedly including in the decision comments such as these:

"[ACS is] driven by fear of an untoward incident of child abuse that will result in criticism of the agency … The concern over institutional self-protection, rather than children's best interests, explains a good deal of ACS' predisposition toward counterproductive separation of abused mothers and their children." [P.85].

“The evidence demonstrated that City defendants' practices and policies in this field harm children much more than they protect against harm. The children suffer the trauma of being separated from both of their parents, blame themselves for the abuse of their mothers, confront an unfamiliar and often dangerous foster care system, while all the time their mother could most likely be giving them care and comfort if only ACS, with the cooperation of other city agencies, would carry the government's own burden of protecting her from violence. Children's welfare, the state interest which is so often the great counterweight deployed to justify state interference in family affairs, has virtually disappeared from the equation in the case of ACS's practices and policies regarding abused mothers. [Emphasis added p.169].

The consistent policy applied by ACS is to remove children of abused mothers in violation of the procedural and substantive due process and Fourteenth Amendment rights of abused mothers and their children solely because the mother has been abused. No legislatively appropriate policy, no compelling state interest, justifies these removals. The evidence clearly shows that the compelling state interest in protecting children, which justifies removals in other contexts, is not at all advanced, and is in fact greatly hindered, by ACS's policies of prosecuting abused mothers and removing their children. [P.163].

“The government's … actions are motivated by bureaucratic caution and ignorance that harm, rather than help the interests of the child." [P.173].

Judge Weinstein flatly rejected ACS' claim that such removals are rare:

By clear and convincing evidence the court finds: ACS unnecessarily routinely prosecutes mothers for neglect and removes their children where the mothers have been the victims of significant domestic violence and where the mothers themselves have done nothing wrong. ACS unnecessarily routinely does so without having previously ensured that the mother has access to the services she needs to protect herself and her children. ACS unnecessarily routinely removes children without a court order. ACS unnecessarily routinely fails to return these children to their mothers promptly after being ordered to do so by a court. Even as it unnecessarily prosecutes the mother and demands that she participate in often ill-advised services, ACS unnecessarily routinely fails to engage the batterer, demand that the batterer participate in needed services, attempt to remove the batterer from the household, or otherwise hold the batterer accountable . [P. 126].

Judge Weinstein links the wrongful removals directly to the foster-care panic that followed the death of Elisa Izquierdo in 1995, and he repeatedly cites the harm done by the original ACS mission statement.

This is not a case of a single “rogue case manager” repeatedly acting outside

the borders of accepted policy; the individual cases presented to the court were the work of a number of different case managers, caseworkers, supervisors, and attorneys that worked with them. Policy documents, while not explicitly directing employees to always remove children of abused mothers, are vague about when children should be removed, except for the clear and overriding mission statement that “Any ambiguity regarding the safety of the child will be resolved in favor of removing the child from harm's way.” Ex. 37. … The failure to adequately monitor, train, and guide the employees, where violations were not only likely but were regular and widely-publicized constitutes tacit approval by the upper management of the routine practice within the organization. [P.162].

Judge Weinstein devoted five pages of the decision to a summary of expert testimony, demonstrating that while witnessing domestic violence can harm children, taking them from their battered mothers is much, much worse.   He cited one expert who said:

"[T]aking a child whose greatest fear is separation from his or her mother and in the name of 'protecting' that child, forcing on them, what is in effect, their worst nightmare ... is tantamount to pouring salt on an open wound." [Emphasis added, p.74].  

And finally, the judge drew an interesting analogy in condemning unnecessary foster care:

"It hardly needs to be added that the exact language of the Thirteenth Amendment covers protection of the children's rights. They are continually forcibly removed from their abused mothers without a court adjudication and placed in a forced state custody in either state or privately run institutions for long periods of time. There they are disciplined by those not their parents. This is a form of slavery." [P.159].