But will this one work?
On July 8, 2015, New York City Public Advocate Letitia James filed a class action lawsuit on behalf of all children who either are, or will be, in the New York City foster care system. Ten foster children “bring this lawsuit as a civil rights action on behalf of all children who are now or will be in the foster care custody of the Commissioner of New York City’s Administration for Children’s Services,” the Civil Complaint explains.
The suit alleges that the Administration for Children’s Services and the New York State Office of Children and Family Services fail to protect foster children from maltreatment; fail to ensure that services provided are effective and of acceptable quality; and, fail to ensure appropriate placements. According to the suit, the harms and risks that children in ACS custody suffer are a direct result of ACS and OCFS failing to properly address structural deficiencies in the New York City child welfare system, the Office of the Public Advocate explains.
The highly detailed Civil Complaint may perhaps best be summarized by page 8 of the one hundred eleven page document:
New York City’s child welfare system is causing devastating, ongoing and long-lasting harm to New York City children in its care”
a. Children who are separated from their parents to whom they could be returned weep at the end of visits with their parents but continue to live in foster care well beyond the time they could be returned home.
b. Parents whose children are removed because they need services are unable to gain access to the right services and thus are unable to regain custody of their children.
c. Children who cannot be safely returned to their parents languish in foster care, many moving from place to place, growing older and more damaged by their experiences, not knowing to which adults to form attachments, or trusting no adults at all.
d. Children traumatized by the disruptions in their young lives do not know where they will be living from one month to the next, or whether there are any adults on whom they can rely. Often by the time a decision is made about what the plan should be for their future, they are irreparably damaged by their experiences in foster care
The suit continues on to assert: “Through a pattern and practice of long-standing and well-documented action and inaction, Defendants—who are responsible for protecting New York City’s foster children—fail to keep these children safe. And, instead of ensuring that New York City’s foster children grow up in safe, permanent families, Defendants’ policies and customs cause far too many children to grow up in the custody of the state, without a home or family to call their own.”
The Complaint also asserts that, “The illegal conduct of which Plaintiffs complain has plagued New York City’s foster care system for far too long—a fact well known to Defendants, all of whom have been in a position to change it.” Among the other general allegations:
Combining anecdotal reports from the hotline and publicly available data, the Office of the Public Advocate identified several deficiencies including, but not limited to, ACS removal of children without proper court process, failure to identify and provide adequate services for parents of children in care and subsequent delays in reunification, failure to place children appropriately and thus creating instability, failure of ACS and the Contract Agencies to be prepared for court dates, failure of ACS to recruit, train and support adoptive placements, failure to engage in concurrent planning, failure to protect children from maltreatment and failure to provide adequate health and mental health services to children in care. Those deficiencies and recommendations for addressing them were cited in a report that was issued on July 2, 2015.
Regarding the relief sought on behalf of the City’s 11,137 foster children, the Complaint explains:
Plaintiffs seek a ruling from this Court that the structural deficiencies and long-standing actions and inactions described in this complaint violate the statutory and constitutional rights of all children dependent on the New York City foster care system for their safety, their well-being and their futures. They seek an equitable injunction against the responsible city and state officials and agencies named as Defendants in this lawsuit, directing that appropriate relief be granted so that New York City’s foster children are no longer irreparably harmed by the system that is supposed to protect them. These children have a right to a safe and nurturing childhood. Plaintiffs ask this Court to protect that right.
Prior to having initiated the current legal action against the Administration for Children’s Services, the Public Advocate’s Office issued two comprehensive reports detailing the long-standing deficiencies in New York City’s foster care system. These two reports serve to detail the case beyond the Civil Complaint itself. The case is likely to proceed on the basis of the information detailed in these reports.
The more recent of the reports, “Improving foster Care in New York City: Stories Through the Lens of Children in Foster Care,” is mentioned in the Civil Complaint as having been issued on July 2, 2015. The report details the complete disregard for both the laws governing intervention, as well as a disregard for the due process rights of both parents and their children:
ACS removes children from their homes when it is believed that they are in an unsafe environment. While ACS must always obtain a court order to effectuate a removal, they can make the removal prior to obtaining the order only when the child’s life or health is in immediate danger. As highlighted in ACS’s Guide for Parents with Children in Foster Care, it is recommended that emergency removals be limited. Between April 2014 and April 2015, however, there were high numbers of emergency removals. In March 2015, for example, as many as 51 percent of the removals were done on an emergency basis, without obtaining a court order prior to removal.
The Advocate’s report further explains, “Emergency removals should only take place in the case where a child is considered in immediate danger. Many of those children removed without court process are returned to their homes after the initial court date, demonstrating that in those cases the removal was unnecessary.”
Are 51 percent of the children that caseworkers come in contact with truly in harm’s way, and in need of an immediate removal from their home? Do so very many of these children really belong in foster care?
In March of this year, Jessica Marcus, supervising attorney at Brooklyn Defender Services’ Family Defense Practice, testified before a Committee of the New York City Council. During this hearing, Marcus explained that over 90 percent of the child protective cases filed by the Administration for Children’s Services “are based on allegations of neglect and the vast majority of these cases are caused or exacerbated by the family’s poverty.” Marcus continued on to explain:
Most of these cases represent a failure of the City’s safety net systems for poor children and families – public and other subsidized housing, public assistance, health care, and mental health care systems – to truly support families in need. The City can save money and reduce foster care placements by putting systems into place that address the needs of these families.1
With respect to the high numbers of child removals lacking court orders, Since 2010, Brooklyn Defender Services has been urging the Adminstration for Children’s Services “to cease their illegal practice of removing children without court order in situations where there is time to seek a court order.” While the policy was ostensibly changed in February of 2011, as of this year “the practice of removing children without court order persists.”
If indeed over 90 percent of the City’s child protective services cases are based on allegations of neglect, with the majority of the cases being caused or exacerbated by the family’s poverty, an “emergency removal” rate in excess of 50 percent is rather difficult to justify.
What does the agency train their workers to look for in making their removal determinations? Among many other things, substance abuse. But NYC’s child welfare officials are not talking about the kind of substance abuse that most people would imagine when they hear the term, as Jessica Marcus explained:
The majority of substance abuse allegations in our cases are based on marijuana use. Even though marijuana possession is legal in New York, ACS prosecutes parents for marijuana use, often without obtaining a professional assessment as to whether that use constitutes a serious addiction that directly causes harm to the children. This practice is an unnecessary use of scarce resources. ACS should be focusing on cases where drug addiction is demonstrated to be harmful to children. We have many cases where children remain in foster care even though the only issue is ongoing positive tests for marijuana.2
Try to imagine yourself as a young child being taken out of your home only to be “placed” in the home of complete strangers in an unfamiliar part of a large city, or in an emergency shelter, or, as has been the case the past, in an office in the Administration for Children’s Services. Imagine being told that you are going to spend the night wherever it is that you have been placed. Imagine your would-be saviors denying you a telephone call to your mother at a time when you need her the most. At a time when you truly need her to help you understand why this is happening, and needing reassurance from her that she will do everything that she can to bring you back home. Although you don’t know it at the time, if you are lucky you may go home as quickly as in one day, or after three or four days if you were taken on a Friday night. More typically, however, the ordeal may last three weeks or longer before it is undone. And, there is a high probability that you will be physically, sexually, or otherwise abused while you are in care.3
That is not the kind of trauma that any child should have to endure. The trauma of an unnecessary removal.
Much criticism has been raised over the years regarding the imposition of so-called “reunification plans” that are seemingly constructed to thwart the reunification of children with their parents.4 New York city provides no acception to the rule, as Jessica Marcus explained in her testimony before the New York City Council earlier this year,
ACS child protective workers continue to routinely mandate services, such a s mental health evaluations, therapy, or parenting classes, which are unnecessary or not carefully tailored to meet the particular needs of the family, even though many of these interventions have not been proven effective by evidence-based research. In addition, child protective and foster care agency workers are rarely sensitive to the barriers families face in accessing these services or able to help families access them. Services are often scheduled during a parent’s work hours forcing parents to choose between fulfilling a service requirement and losing a job. Oftentimes, parents are asked to attend services but no transportation or child care is provided, making it difficult to comply.
emancipated to homelessness
The first of the Advocate’s reports, “Improving the Outcomes for Youth Aging out of Foster Care in New York City,” explains that, “The challenges concerning youth aging out of the foster care system are not unique to New York. But several governments and social services providers have successfully implemented programs aimed at helping youth aging out of foster care in various municipalities across the country. These programs are helping youth secure housing, employment, social services and access to higher education.” The report continues on to note that:
Each year, nearly 1,000 young people age out of the foster care system. While 20 percent of these young adults are discharged into the care of an adult, the remaining 80 percent are on their own, and must handle significant real world challenges with virtually no safety net. Acquiring the most basic of needs such as housing, employment, healthcare and education is often a significant challenge. Not surprisingly, outcomes for these young adults are often not good. Between 18 to 26 percent of foster youth who age out of the system end up in homeless shelters and approximately 50 percent of foster youth fail to find employment after aging out of the system.
This serves well to illustrate the contempt that the Administration for Children’s Services holds for the law, and for the very children that it claims to be protecting. In 2011, The New York City Legal Aid Society, Lawyer’s for Children, and the law firm of Davis Polk and Wardwell filed a lawsuit against the Agency on behalf of those youth who “have been or will be unlawfully discharged from the foster care system into homelessness” or other housing conditions deemed unsuitable under long-standing law.
That case was settled, with assurances made by the Administration that action would be taken. Four years later, precious little had changed, as the current action by the Public Advocate makes clear.
In December of 1995, Children’s Rights, Inc., filed a remarkably similar lawsuit against the City, Marisol v. Guiliani, charged that the New York City child welfare system violated the law, resulting in great harm to children. The action charged that some children were left unsupervised in abusive households, while others were taken from parents who could raise them if they received supportive services.
“Thousands of children languish in city custody, some in foster homes or group facilities that are little better than the homes from which they have been ‘rescued,’ because the city has failed to take the necessary steps to ensure that children’s placements are adequate, or that children are moved into permanent homes,” explained the case summary on Children’s Rights’s home page as of 1997. It continued on to explain:
New York spends more on children in foster care, per capita, than any place else in the country. But if the New York City foster care system were considered a business, with its profit-and-loss statements judged in terms of unnecessary human suffering, in terms of misspent dollars, or even in terms of how far the system departs from its own goals, it would have been forced into bankruptcy long ago. The city has, if anything, a surfeit of skilled professionals, and spends an extraordinary amount of money, which should make it one of the best child welfare systems in the country. Instead, it is one of the worst.
As explained in one of the many cases that spun off of the original one, Joel A. v. Giuliani, after more than two years of intensive discovery, on the eve of trial in July 1998, the parties informed the district court that they were engaged in settlement negotiations. The trial date was postponed and the parties conducted negotiations for over four months. On December 2, 1998, two settlement agreements signed by the appropriate parties were filed with the district court: the City Settlement Agreement and the State Settlement Agreement.5
The hingepin to a successful reform effort would an absolute reduction in the number of children wrongfully removed from their homes. This seems to be the part that the City can’t seem to get right. (Indeed, this appears to be the one aspect of child protection that no one gets right.) As a progress report on the Administration for Children’s Services efforts at reinventing itself in light of Marisol, issued by the Office of the Public Advocate and C-PLAN: Child Planning and Advocacy Now explained in 2001:
Despite ACS’s progress over the last five years, many serious problems remain. While the foster care population has declined in recent years, those children who are now in care –30,644 as of March 2001 — are facing increased risks to their safety, health and well being. Adolescents — who make up nearly half of the foster care population — are especially vulnerable. Given the ongoing problems in foster care, child welfare officials must explore alternative policies that protect the safety of children while keeping them with their parents, when appropriate.6
Nearly twenty years after Marisol, here we are, right back where we started. If anything, it may be easier the second time around, as New York City had approximately 43,000 children in its foster care when Marisol was filed, while it has “only” 11,137 in its care as of today.
By some accounts, Marcia Robinson Lowry, who is associated with the current legal challenge raised by the Public Advocate, seems to have regained her sense of focus. By that, I mean that she appears to be more closely focusing on the issue of children being wrongfully removed from their homes, which is the primary reason that the foster care system is as overloaded as it is. For many advocates, the focus of Children’s Rights Inc., seemed to have turned from at least extending some effort at family preservation, to almost-exclusively trying to improve conditions for children once they had entered foster care, regardless of whether they belonged there or not.
The ill-conceived rush to find permanency for children by imposing arbitrary timelines for termination of parental rights, which in turn led to a new class of “legal orphans” residing in foster care, seemed to have been philosophically embraced by Children’s Rights. Indeed, my heart sank when Children’s Rights took Richard Gelles – the author of the Adoption and Safe Families Act – on board.
Something seemed to have changed after that happened. Perhaps it may be explained on the basis of his contribution to the groupthink that necessarily took place in strategy sessions held behind closed doors at Children’s Rights, having been contaminated by Gelles’ unadulterated anti-family and parent-blaming zealotry.7
There remains some room for cautious optimism. As of this year, the Senate Finance Committee is taking preliminary steps to stem the tide of children wrongfully removed from their homes.8
The City of New York will, in all likelihood, expend a great deal of money in defending the Administration for Children’s Services against the indefensible. And, in all likelihood, the Plaintiffs will ultimately prevail. The remaining question is one of how to get an agency that has historically disregarded the rulings of the Courts to comply with the rulings that are sure to come?9
Vivian Yee, “Suit to Accuse New York City and State of Keeping Children in Foster Care Too Long,” New York time, (July 7, 2015) (examining Marcia Robinson Lowry’s role in both Marisol and the current suit).
Annamarya Scaccia, “Questions on Whether Lawsuit is Likely to Solve City’s Foster-Care Problems,” City Limits, (August 3, 2015).
“UNDER FIRE: New York City’s foster care system failures result in class action lawsuit,” CNN, July 9, 2015.
John Riley, “Public advocate sues NYC for alleged failures in foster care system,” Newsday, (July 8, 2015).
2. Id. This particular policy is by no means unique to New York City. In November of 2014, the story of two-ear-old Alexandria Hill sent out shock waves over the internet, after her father made the mistake of admitting to child protective services caseworkers that he’d smoked marijuana while his daughter was sleeping in bed at night. The Texas Department of Family and Protective Services convinced a judge to sanctify Alexandria’s removal from her home. Alexandria died at the hands of her foster mother. The medical examiner found that her head hit the floor so violently that she was found to have “subdural hemorrhaging, subarachnoid hemorrhaging, and retinal hemorrhaging in both eyes,” according to court testimony. FOX News, “2-year-old taken away from parents because they used marijuana, killed by foster mother,” WPMT Fox 43, (November 6, 2014). In March, child protective services caseworkers removed Shona Banda’s 11-year-old son from her home in Kansas, saying that her use of marijuana to control her debilitating case of Crohn’s Disease put her child in danger. Within weeks, her case gained national notoriety, with thousands of people signing a petition to have her charges dropped and her son returned; a rally of support taking place at a courthouse; and a lawsuit being filed against the state of Kansas and its Department for Children and Families. Brigid Schulte, “Mom who uses medical marijuana faces up to 30 years in prison,” Washington Post, (June 8, 2015). By April of 2015, the Huffington Post reported that “more than 28,000 people had signed a petition asking the Finney County District Attorney and the Kansas Department of Families and Children not to press charges against Banda and to release her son into her care.” Julia Craven, “Thousands Demand Leniency For Medical Marijuana Advocate At Risk Of Losing Custody Of Son,” Huffington Post, (March 23, 2015). Naturally, as the case had attracted a growing body of supporters, a gag order was issued by the court. Roxana Hegeman, “Kansas medical marijuana activist loses custody of her son, could face charges,” Topeka Capital-Journal (April 21, 2015). By mid-July, the tables had turned, with Attorneys Sarah Swain and Matthew Pappas having filed a federal civil rights lawsuit against the State of Kansas and its Department for Children and Families on behalf of Shona Banda. Barry Donegan, “Shona Banda’s Lawyers File Federal Civil Rights Lawsuit Against State of Kansas,” Truth in Media, (July 20, 2015). The hard line that Massachusetts takes against marijuana-using parents may be what inspired Sara Arnold to co-found the Family Law & Cannabis Alliance, a Massachusetts-based group that advocates for the legal rights of parents. Arnold, a medical marijuana user, had herself been investigated by child protetive services three times. “We have actually had instances of medical marijuana patients in states where medical marijuana is legal facing termination of their parental rights,” Arnold said. “If a parent had a bottle of wine, no one would be coming to check that out.” Brigid Schulte, “Even where it’s legal for parents to smoke pot: What about the kids?” Washington Post, (June 6, 2015).
3. See Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y 2002) wherein all of these factors are discussed at great length by Senior District Judge Jack B. Weinstein. The actions of caseworkers and their managers as they are described are truly conscience-shocking, however they testified that the way they conducted business was “routine,” and none of them thought that they had done anything wrong.
4. See Mark Green, Office of the New York City Public Advocate and C-PLAN: Child Planning and Advocacy Now. Comments on the Five Year Anniversary of the Administration for Children’s Services. (May 2001) (Citing a number of representative cases reported to C-PLAN by The Family Reunification Justice Project, Inc., a Bronx-based project that sought to aid families with reunification). Much of the problem as been attributed to the lack of legal representation for the poor. See for example Crisis in the Legal Representation of the Poor: Recommendations for a Revised Plan to Implement Mandated Governmentally Funded Legal Representation of Persons Who Cannot Afford Counsel, Appellate Division, First Department Committee on Representation of the Poor. (2001) (noting that “already overburdened lawyers who previously accepted 18-B assignments have declined to accept more assignments, leading to an increasing inability of the courts to adjudicate pending matters with the result that families remain disrupted, children remain in foster care and persons accused of crimes languish in detention”).
5. See generally the Marisol A. v. Giuliani Civil Complaint, Marisol A. v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996) (denying a motion to dismiss and certifying the class), aff’d, 126 F.3d 372 (2d *385 Cir.1997), and Marisol A. v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.1999) (approving the settlement agreements), aff’d sub nom., Joel A. v. Giuliani, 218 F.3d 132 (2d Cir.2000).
6. Office of the Public Advocate and C-PLAN: Child Planning and Advocacy Now, Comments on the Five Year Anniversary of the Administration for Children’s Services, May 2001.
7. I discuss this at some length in my entry “Children’s Rights, Inc., succumbed to the “more of the same” delusion,” July 25, 2010. Quite candidly, I would have much preferred to have seen Martin Guggenheim added to their ranks.
8. A Way Back Home: Preserving Families and Reducing the Need for Foster Care, United States Senate Committee on Finance, Hearing, August 4, 2015.
9. If there is any lingering doubt regarding the Administration for Children’s Services and its complete disregard for the law, see Leslie Kaufman, “City Often Took Children Without Consulting Court,” New York Times (October 28, 2004) (noting that a high-ranking attorney instructed the Administration for Children’s Services such that it should ignore adverse rulings by the Courts, and that “A.C.S. staffers should go about their normal jobs as they always have, secure in the knowledge that the city stands behind them and will back that up”).