THE MYTH OF “DUE PROCESS” FOR FAMILIES

Child welfare agencies say it all the time: We don't decide to remove children, they'll say.   Every decision has to be approved by a Family Court judge.

In real life, however, ACS holds the cards and makes the decisions.   The judges are far more prone to wield rubber stamps than gavels.   Indeed, several judges admitted to a national advisory panel that they routinely approve the removal of children even when they think ACS has not made a good enough case – because they are terrified of what the media will do to them if they leave a child in his or her own home and something goes wrong.

From the initial phone call to the child abuse “hotline” to termination of parental rights the most important thing to understand about “due process” for families in New York City is this:

There is none.

That first phone call can be anonymous.   It can be from a landlord out for revenge or a disgruntled boyfriend or an upset neighbor – or simply someone making an honest mistake.   But no one, not even the hotline operator, can demand to know who is making the call.

That anonymous call to the state hotline in Albany is passed on to ACS, typically with little or no screening.   It then lands on the desk of an ACS caseworker who knows that she can remove hundreds of children from their homes, and do those children enormous harm, but she will suffer no penalty.   Leave one child in a home that later proves dangerous and her career may be over.   As one former ACS caseworker put it:

                    “A manager or supervisor has no one to answer to if a child who shouldn't be in foster care is removed from home anyway.   There is no penalty for the wrongful taking of a child ” [emphasis added]. [i]

That worker wields enormous power.   New York State law allows her to remove a child on the spot, entirely on her own authority. The law says this power is supposed to be used only in emergencies.   But ACS often uses it when there is no emergency at all, despite a federal court ruling ordering the practice banned (see How the Emergency Removal Power is Abused ). [ii]

What this all means is that ACS has a “free shot” at any child in the city for at least 72 hours – that's how long it takes before there is a hearing where a parent can try to fight to get her child back.   And in truth, ACS' free shot lasts a lot longer.

For starters, the “72-hour hearing” often doesn't take place for a week or more.

And then, it's hardly a fair fight.   On one side is an ACS lawyer who has had at least 72 hours to prepare a case.   He works in a fully- staffed office with secretaries, computers, caseworkers and any other source of expertise he needs.   Attorneys representing children work for the Legal Aid Society – again, an institutional provider which gives the lawyers support staff and resources.  

On the other side is typically an overwhelmed, impoverished birth parent who, if she has a lawyer at all, just met him in the hallway five minutes before the case was called.

That lawyer's “office” may be his briefcase.   He has no institutional “provider” to back him up.   He has no social worker to evaluate the city's case and offer alternatives or even talk to the parent.   He has no money for expert witnesses.   He probably doesn't even have a secretary.   After all, you can't afford all that on $75 an hour.

What can the lawyer do?   According to a report from the New York City Public Advocate,

“[W]ithout the benefit of any background information or investigation, the attorney must make a whole host of weighty decisions, only the first of which is whether to request a … hearing to challenge the removal.   The attorney is faced with a Hobson's choice: proceed with the hearing without sufficient time to prepare, or seek a continuance and require the child to stay in foster care in the interim.   More often than not, a good lawyer will opt for the continuance.” [iii]

And this is the best-case scenario.

Often, there is no lawyer at this first hearing at all.   The judge may send a court officer into the hall to “shop” a case, desperate to find a lawyer who'll take it, walk into court and “represent” the parent on the spot.  

But the shortage of such lawyers is so acute that often there is no lawyer available.   So the case is postponed in the hope that maybe another day, there'll be a lawyer around.   Parents sometimes are forced to return to court every few days in the hope of getting lucky and turning up on the same day a lawyer is available. [iv]   On each of those days, of course, the parent must miss work.

Meanwhile, the child stays in foster care, and ACS' “free shot” continues.   The parent may not even be able to visit the child.   And with postponement after postponement it may be six or seven months before the court even rules on whether ACS was justified in removing the child in the first place. [i]

Sometimes it can take even longer.   Consider the case of a mother, recovering from cancer, who asked a friend to help her with the children.   The friend sexually abused one of the children – and was jailed for his crime.   Two-and-a-half years later, the children still were in foster care, and there had not even been a finding of neglect against the mother. [ii]

So even when a lawyer is found, that lawyer can do little more then tell the parent to plead guilty to something and jump through ACS' hoops, since contesting the case will only lead to more delays, and she'll probably lose anyway.   One study found that parents win these cases on the merits only 1.6 percent of the time.   The study found this is not because ACS is 98.4% perfect. [iii]

And then things only get worse.   During the time a child is in foster care, agencies have certain obligations.   In theory, at least, they are supposed to provide services to help reunite the family, ensure visitation, etc.   But what if they don't?   What if a parent wants to go back to court and demand that the agency do its job?   That parent will have to go it alone.   The city provides no lawyer at all after a child is deemed neglected, until the next regularly scheduled review of the case – at which time, the whole process of finding a new lawyer willing to take the case starts over again.

“All in all the parent has little chance of prevailing…” the Public Advocate's report concluded. “…a parent accused of neglect or abuse is guilty until proven innocent.”

And what if, by chance, the parent gets a good lawyer with time and resources to make a case, one who can show that ACS does not have a good case to keep the child?   It probably won't matter.

Members of a national advisory panel were shocked to hear a group of New York City

Family Court judges admit that they did not decide these cases on the merits.

“The judges had much to say about their frustration with ACS for cases in which it lacks adequate preparation or fails to present a solid evidentiary case of abuse or neglect.   Yet they acknowledge that they do not hold ACS accountable by refusing to grant their petitions in these cases.

                    “They felt that they could not risk making a mistake and having a child die; spoke of a withering media attention to decisions which turn out badly, and cited the lack of Court of Appeals support for insistence upon solid legal evidence for removal … Such practice … comes frighteningly close to abdicating the Court's basic responsibility to protect the rights of children and families.” [iv]

And every worker at ACS knows it.   When one battered mother told her ACS worker she was sure the judge would understand she was innocent, the ACS worker replied: “The judge is always on ACS' side.” [v]  

Of course, occasionally a Family Court judge will refuse to cave in to this pressure.   The judge will insist that ACS prove its case before a child is removed and demand that the agency provide the services to families that are required by law.

Philip Segal was such a judge.   According to the Daily News “Segal was known as a tough task master who ordered attorneys to follow statutes requiring they provide proof, not just allegations, that a child is in danger before removal from a family.   He was known to sanction Administration for Children's Services attorneys who did not follow his directives.”

So former Mayor Giuliani refused to reappoint him.

“Judge Segal was one that demanded the state prove its case,” said Daniel Greenberg, president of the Legal Aid Society, which represents children, not parents, in Family Court.   “The fact that he is not being reappointed sends a dangerous message that reinforces the way Family Court behaves.” [vi]

[i] Akka Gordon, “Taking Liberties,”   City Limits , December, 2000 . Available online at http://www.citylimits.org/conten t/articles/articleView.cfm?articlenumber=665

[ii] Tenenbaum v. Williams 193 F. 3d 581 (2d Cir., 1999).

[iii] Ibid.

[iv] Wendy Davis, “Misrepresenting Families,” City Limits , June 2003.

[i] Justice Denied , Note 3, supra.

[ii] Office of the Public Advocate Families at Risk: A Report on New York City's Child Welfare Services , Dec. 9, 2002, p.29.

[iii] Ibid.

[iv] Special Child Welfare Advisory Panel for New York City, Advisory Report on Frontline Practice (March 9, 2000) p.48.

[v] Case cited in Decision of Judge Jack B. Weinstein, Nicholson v. Williams , available online at at http://news. findlaw.com/hdocs/docs/nyc/nchlsnwllms030102drft.pdf

[vi] Nancie L. Katz, “Judge is Defended: Rudy's KO of respected jurist protested” New York Daily News , March 26, 2001.