Is there Hope for the 'Saddest Place in New York?'
By Abigail Kramer
In 2009, the State Senate began a report on court financing with the quote, "Family Court is perhaps the saddest place in New York." The quote is unattributed. But when you step off the elevator into the 8th floor waiting room of the Bronx Family Court building, its truth becomes self-evident. Here and on the floor below (accessible by a slow and usually crowded elevator—stairwells are off-limits in Family Court) are where people wait to be heard in cases against parents and guardians accused of neglecting or abusing their children.
The courthouse is dismal in the particular way of municipal buildings that serve the very poor. The walls and floors are scuffed. The ceiling is a low patchwork of industrial foam squares. There are no windows to the outside. For a place that deals in the problems of families, it’s remarkably difficult to navigate with kids: Food and drinks are not allowed. There's nowhere private to nurse a baby unless you go to the first-floor child care room, where you won’t hear a court officer call your case.
At 10am on a recent Friday morning, about 30 people sat on benches, wearing the vaguely taxidermied look of those who expect to wait for a very long time. In a corner, a woman rocked a baby back and forth in a stroller. Down the hall and behind a closed door, a toddler screamed, "I want mommy, I want mommy." Two people dozed.
Most were still in their places at 11am, and at 1pm when the court broke for lunch.
When waiting-room occupants are finally called into courtrooms, their family tragedies play out in 30-minute episodes, strangely leached of drama by the florescent lights and the business-as-usual nature of a bureaucracy that deals in crisis every day. In one, a father with a criminal court conviction for assaulting his wife waives his right to a Family Court trial. Through his lawyer, he says he'll do whatever the court asks in order to be allowed time with his son and daughter.
Another morning, in Manhattan, two parents surrender rights to their children. They've been fighting the case for four years, but now they sign papers that might mean they never see their kids again.
Even the wins in Family Court are sad. Back in the Bronx, a mother reluctantly accepts a suspended judgment in an educational neglect case. As long as her kids go to school and follow their special education plans, the allegations against her will be dropped—but that doesn’t mean she’ll be declared innocent. She leaves the court in tears, saying, “I just don’t want to be blamed for something I didn’t do.”
At an end-of-day emergency hearing in Brooklyn, it’s decided that two toddlers can stay with their parents—as long as they immediately leave the apartment they’ve been living in, where the primary tenant faces more serious neglect charges. Each parent takes a very small hand as the family leaves the courthouse, headed to find a spot in a homeless shelter.
JUSTICE DELAYED: THE SLOW GRIND OF FAMILY COURT
New York City’s Family Courts are charged with deciding nearly all legal matters involving children and families—from juvenile delinquency arrests to custody battles to paternity suits.
In child protective courtrooms, judges hear petitions filed by the City’s Administration for Children’s Services (ACS) seeking that kids be sent into foster care or—as is now far more often the case—remain with their families under the court-ordered supervision of ACS and its preventive service agencies, which monitor children’s safety at home. (Learn more about how child protective hearings work here.)
For parents and kids, the stakes couldn’t be much higher. Yet the city’s Family Courts are chronically overburdened and under-resourced, plagued by high caseloads, overworked staff, and a stubborn legacy of dysfunction and delay.
Getting from the start to the end of a case is almost never straightforward. Only a small percentage of child protective cases involve clear instances of abuse; many more revolve around murkier issues of poverty and neglect, often involving behavior—like using marijuana during pregnancy—that would likely go unnoticed in middle-class families that have little contact with public institutions.
Once a case lands in court, allegations tend to cascade. Unlike in criminal courts, where it’s the burden of the State to prove a specific accusation (“Did you or did you not possess ten grams of PCP on a particular Wednesday?”), a Family Court case might start with the investigation of a parent who leaves her child unsupervised in a homeless shelter, and pick up allegations of educational neglect or drug use along the way. Cases often last for months, or even years, as parents attempt to demonstrate that they’ve resolved the circumstances that brought them to the attention of child welfare in the first place—usually by participating in a range of prescribed social service programs like parenting classes or psychotherapy.
Even then, the notion of ‘resolution’ can be tenuous. Child protective courtrooms deal in people’s most profound and intimate failings—parents failing their kids; spouses and partners failing each other—entangled in all the ways that public systems fail poor families. Their daily fare is homelessness, addiction, unemployment, mental illness, domestic violence, and grinding, intergenerational poverty.
Judges are required to make supremely important decisions ("Will you ever go home to your mother?") under extraordinarily difficult conditions: According to data reported by the court, child protective judges carry average pending caseloads ranging from 409 at any given time in the Bronx to 520 in Staten Island. In the busiest boroughs, judges frequently have two or three hearings scheduled for the same half-hour time slot.
Inevitably, untenable caseloads lead to inefficient hearings, held in brief increments spaced by months of delay. Judges and lawyers waste hours reviewing old testimony. Facts get forgotten and must be repeated. City and foster care caseworkers quit, taking their knowledge of cases with them. Meanwhile, families are dragged through a prolonged and terrifying process, and kids are left in limbo, with no certain way to know where they'll sleep after the next decision is made. Critics call the process “trial by teaspoon.”
“We have taken delay to a new level that other courts don’t have,” says Chris Gottlieb, co-director of the Family Defense Clinic at the New York University School of Law, which represents parents in Family Court. “This level of delay would never happen if the litigants were people who garnered respect.”
MAKING A CASE FOR HOPE IN FAMILY COURT
This month, the City’s Family Court administration is expected to release a package of reforms and strategies aimed at making the court process work better and faster for all its participants.
Longtime court veterans tend to be skeptical about the prospects of reform. (So many attempts have been made to fix Family Court in the past 20 years that it’s sometimes described as a place where pilot projects go to die.) But court administrators say that if there has ever been a time for positive change, it’s now.
Crucially, child protective cases are at their lowest point in decades. Since a peak in 2006, ACS has cut the number of abuse and neglect petitions it files with the court by more than 20 percent. And at the beginning of 2015, City Family Courts received funding for adding nine new judges, all of whom are hearing child protective cases—the first such increase in more than 20 years.
The court’s new strategic plan will capitalize on the new judges and lower caseloads, says Judge Jeanette Ruiz, who took over as the New York City Family Court’s administrative judge in October 2015. The major goal is to make hearings happen more quickly and efficiently.
One significant piece of the plan is already in action. Last summer, the Family Court in Brooklyn—which has been, for many years, slower than Family Courts in the other boroughs to complete child protective fact-finding hearings—rearranged the way cases are heard, assigning particular judges and courtrooms to oversee different aspects of cases. Designated intake judges handle the flow of cases coming into the court, for example, while specialized trial courtrooms are reserved for hearing testimony and deciding case outcomes. While the downside of such an arrangement is that parents must switch judges mid-case, it also means that hearings can be held in much longer sessions, with fewer adjournments in between.
It’s too early to measure whether the changes in Brooklyn will move cases more quickly—or whether speed will lead to better long-term outcomes for kids. But advocates of the plan point out hopeful evidence from Queens County, where a similar strategy was launched in 2010. According to court data from 2014, the average time it takes child protective cases in Queens to reach disposition dropped by nearly a month, compared to court times prior to the 2010 change in court assignments.
“There’s a real vision to move cases more quickly and to do more continuous trials,” Ruiz says. “I'm committed to everyone having their day in court sooner rather than later, so families can go on with life.” Along with attempting to instill a sense of urgency in permanency for children and families, the strategic plan also aims to promote “respect for all those who come into contact with our court”.
At the same time, ACS is in the midst of a broad-based effort to resolve cases faster by improving services offered by its contracted preventive service and foster care agencies. ACS has already changed the way it evaluates agencies that it contracts with, shifting the emphasis from procedural requirements to measuring good outcomes for families. And it is working with attorneys and advocates to identify and trouble-shoot the most common places where cases go bad.
Those efforts are spurred in part by litigation. Last July, New York City Public Advocate Letitia James filed a lawsuit, along with 10 foster kids, charging that the City’s child welfare system does irreparable harm to children by leaving them in foster care far longer than necessary. (New York City takes longer to return foster kids to their parents than all but five U.S. states and territories, according to Federal data cited by the plaintiffs. And since at least 2007, foster children in New York City have spent more time waiting to be adopted than kids anywhere else in the country.)
Delay and dysfunction in Family Court account for a significant piece of the problem, says Marcia Robinson Lowry, the attorney representing foster children in the lawsuit. “Courts were meant to be a check on the system not functioning well. Instead, they further the malfunctioning. There’s no sense of urgency. If it takes two years to get the child home, well ‘them’s the breaks.’”
ENDING ‘TRIAL BY TEASPOON’ – BUT IS FASTER NECESSARILY BETTER?
In the push for speed and efficiency, many lawyers for families add a warning: Quick legal resolutions, they say, shouldn’t take priority over reaching good outcomes for children and families.
“Speed is not the entire measure,” says Tamara Steckler, the attorney-in-charge of the Juvenile Rights Practice at The Legal Aid Society, which represents most kids involved in New York City Family Court cases. “It cannot be important to the exclusion of due process, or of resolving issues so families can live together and kids can be safe.”
It’s often unfair, Steckler argues, to compare court timeframes in New York City to those of other jurisdictions where, unlike New York, neither parents nor children may be entitled to legal representation. While that may make it simpler to move cases to the finish line, it also makes it easier to steamroll the interests of the most vulnerable people in the room.
Often, it’s worth taking the time to settle a case, rather than pushing for a quick, negative finding against a parent, says Hal Silverman, the attorney-in-charge of litigation at Legal Services for Children. “I have many children who want to go home. If we can put the case off and get monitoring for the parent, that’s a good thing,” he says. “You might want to delay to give the parent time to receive services and work through the issues that brought the family to court."
The trick, says Chris Gottlieb of NYU Law School, is to distinguish between delays caused by caution and those caused by inefficiency. “Every institutional player—all the law offices—ask for too many adjournments. Like every lawyer, I occasionally have clients where it’s in their interest to push for delay, but judges should not give me an adjournment unless I have a damn good reason. Judges have to make it unacceptable to come to court unprepared. They need to make it clear that if lawyers aren’t ready, they’re going to be in trouble.”
Gottlieb suggests that, ideally, courts should have the power to impose sanctions that benefit families. “In criminal court, a lot of the discipline comes from the fact that when the State isn’t ready to prosecute, the case can be thrown out,” Gottlieb says. “We can’t do that in Family Court. But you could say to ACS, every time we’re on for fact-finding and you’re not ready, you have to put $100 per day into a trust fund for the children. You could set it up so there’s an enforcement mechanism that’s good for kids.”
LOWERING THE HUMAN COSTS OF DYSFUNCTION AND DELAY
Meanwhile, notwithstanding efforts to speed the pace of fact-findings, the snarl-ups and snafus of the child protective process take their own toll on the families involved.
On a gray afternoon last October, for example, ACS offered to settle a case against a Bronx mother raising four kids in a homeless shelter. The mother arrived at court pushing her two youngest—a big-eyed 1-year-old and a baby with a drooling grin—in a double stroller. Her 4- and 7-year-olds walked alongside, each wearing neat braids and matching button-downs, though mice at the shelter had chewed holes in their jackets.
The case against their mother had been opened while she was pregnant. She’d developed health complications, in part due to obesity, and stopped taking the oldest child to school. When ACS investigated, they found that the shelter apartment was in poor condition, and that the 4-year-old showed evidence of behavior problems. A service plan was put in place, including what’s known as a “homemaking” provider, to help the mother cook and clean, as well as mental health evaluations for the entire family. The mother was also instructed to get her 7-year-old to school every day and enroll the 4-year-old in pre-kindergarten.
At each step, the plan fell into some variety of bureaucratic rabbit hole: First, the family was given a referral to a homemaking service that works only with the elderly—a situation that still hadn’t been resolved half a year later. Over the summer, the Department of Education assigned the 4-year-old to a school several miles from his older brother’s. The mother’s lawyer asked ACS to provide a letter in August, requesting a transfer, but by October it still hadn’t materialized. Meanwhile, the family’s preventive service agency hadn’t given them MetroCards to get to their mandatory appointments. The morning of the hearing, the mother had walked all four kids the two miles from her homeless shelter to the court.
At the hearing, it was agreed that the mother would stay under ACS supervision for eight months. If she fails to comply with the court orders and the service plan, the consequences could be severe: A trial, a possible finding of neglect and, always looming, the threat of losing her kids.
There is very little accountability, on the other hand, when things don’t get done by ACS or its contracted agencies—or when parent’s or children’s attorneys show up for hearings unprepared. Bad service plans and referrals slow down cases all the time, says Judge Sarah Cooper, who presides over child protective hearings in the Bronx. It can take months, for example, to get an appointment with a psychotherapist who takes Medicaid—and even longer if you have no medical coverage at all, or if you need a provider who speaks a language other than English.
“We have such a large number of undocumented litigants with no insurance,” Cooper says. “We can wait three months to find out the [foster care or preventive service] agency sent the parent to a place that couldn't serve them. Then they come in and say the parent is not compliant. That’s three months wasted.”
The cumulative effects of delay can leave participants with the dispiriting sense that Family Court is more concerned with its own calendar than with kids. On her blog ‘Fosterhood in NYC,’ a foster mother writes about sitting through court dates for her foster daughter, Sandy, who’s been in care for most of the three years of her life. The court determined that Sandy should be adopted last spring, but the case continues to be heard and reheard in court. In a post last September, the foster mother wrote:
Aside from my attorney, I don’t think Sandy’s name has even been said out loud in court in more than a year.
It’s always about the attorneys’ and judge’s schedules and staying in compliance of what is apparently having more court about more scheduling. Quite literally.
I’m so sick of hearing the judge say “I can’t do this day” and the attorneys say “I can’t do that day” – what about what Sandy needs? How about “Sandy can’t have a normal childhood until you guys sit in a room for a few hours and make a decision?”
Nobody cares. She’s invisible.