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Recent Publications
Trial Magazine, Vol. 42 (December 2006)
"Relatves' Rights To Care For Chidlren,"
by Carolyn A. Kubitschek and Darius Charney
Human Rights, Volume 32, No. 1, Winter 2005
"Holding Foster Care Agencies Responsible for Abuse and Neglect"
By Carolyn A. Kubitschek
New York County Lawyer, Winter 2004
"NYCLA Submits Amicus Curiae Brief in Support of McGrath V. Toys 'R' Us, Inc."
By Carolyn A. Kubitschek
Nicholson Class Action
New York, NY
- The city's Administration for Children's Services (ACS) has agreed that
it will follow the law in child welfare cases involving domestic violence:
ACS will not remove children from battered mothers and will not claim that
victims of domestic violence are neglectful parents. In settling the class
action lawsuit Nicholson v. Scoppetta, the city ends four years of
litigation in which it was found to have violated the constitutional
rights of battered mothers and their children.
Since June 2002, the city has operated under an order barring ACS from
continuing to remove children from victims of domestic violence and from
charging them with child neglect. The order will expire on December 31,
2004. Under the terms of the settlement, attorneys for the mothers and
the children will monitor ACS through September 2005 and can return to
court if the constitutional violations reoccur.
Nicholson received nationwide attention as the first case in the country
to challenge as unconstitutional child welfare practices that punish
rather than protect domestic violence victims and their children. The
lawsuit forced ACS to engage in a widespread revision of its practices
in domestic violence cases and,k by conservative estimates protected
more than 1000 children from unlawful removal from their mothers. In
the wake of Nicholson, the New York legislature amended the law to
provide that child welfare agencies throughout the state be meticulously
trained on issues of domestic violence.
The case's reach extended beyond domestic violence victims and their
children. The case drew attention to the inadequacy of legal representation
for poor people, spurring the New York legislature to increase the rates
paid to assigned counsel for all indigent litigants in the family and
criminal courts to $75 per hour. The attorneys were previously paid as
little as $25, leading to a dearth of qualified counsel.
Further, in October, as part of the appeal process, the state's highest
court ruled that child welfare agencies throughout the state are prohibited
from removing children from any parents, particularly without court order,
without considering the harm to the child of removal.
Since the case began, ACS has paid more than $3.5 million in settlements
to individual mothers and children.
The plaintiff mothers are represented by the law firm Lansner & Kubitschek
and Jill Zuccardy, Esq. of Sanctuary for Families. Center for Battered
Women's Legal Services. The children are represented by Legal Aid Society
Juvenile Rights Division and Lawyers for Children.
See Stipulation and
Order of Settlement.
New York Times Articles
New York Times article, December 18, 2004
"Abuse Victims And the City Settle Lawsuit"
New York Times article, November 28, 2003
"Abused Mothers Keep Children in a Test of Rights and Safety"
New York Times article, September 15, 2002
"City to Settle Over Removal of Children"
Other Articles
New York State Law Digest, New York State Bar Association,
No. 541, January 2005
"Removing Children from Domestic Violence Setting Based Only on Child's Witnessing Domestic Violence"
Trial Magazine, January 2005
"In New York, Battered Mothers Not Presumed Neglectful"
Youth Law News, October-December 2004, Vol. XXV No. 4i, p. 7
"New York Raises the Bar for Interdisciplinary Practice In Family Violence Cases"
New York County Lawyers Association Article
"Court of Appeals Rules in Favor of Precedent-Setting Case Argued by NYCLA Member"
New York Law Journal, December 20, 2004
"City, Agency Settle Suit Over Children of Battered Mothers"
Pro Bono News, Fall 2004
"Small Law Firm Wins Major Domestic Violence Ruling"
By David J. Lansner
Trial Magazine, October 2003
"Justice for Abused Foster Children"
By Carolyn A. Kubitschek
Nicholson Decision is "Good News for Women"
http://www.thenation.com/doc.mhtml?i=20040112&s=pollitt
In its January 12, 2004 issue The Nation lists 20 events in its
"Good News for Women" report. The Nicholson decision was Number 14. "In
New York, the US Court of Appeals for the Second Circuit upheld the 2001
ruling in Nicholson v. Scoppetta that child services can't take away the
children of battered women."
Nicholson v. Scoppetta, New York Court of Appeals
Albany, NY -- In a
strongly-worded unanimous decision,
New York's highest court ruled today that victims of domestic violence who
are beaten in the presence of their children are not neglectful parents.
The Court also ruled that a practice of removing children from battered
mothers without court order violates state law.
In 2002, a federal judge had ruled in the class action Nicholson
v. Scoppetta that the City's Administration for Children's Service had a
practice of removing children from battered mothers and charging the
mothers with child neglect. Last year a federal appeals court referred
the case to the state court for a decision as to whether that practice
was unlawful.
The state court's decision has broad implications not only for
domestic violence victims but also for all parents involved in the child
welfare system. The court explicitly ruled that child protective
services should not remove children from their homes without court order
except in rare circumstances. The court ruled that judges should not
order removal without making a factual inquiry on the need for the
removal. Judges considering removal must also determine whether other
steps, such as removing the batterer, would eliminate the need for
removing the children. Finally, judges must balance the harm to the
children from removal in deciding what course to take.
The case of Nicholson v. Scoppetta was filed in federal court in
January, 2000, and was later certified as a class action lawsuit on
behalf of all mothers who were victims of domestic violence and their
children. After a two-month trial including numerous child welfare and
domestic violence experts, the federal judge issued a decision in March,
2002, finding that the City had a policy of routinely charging mothers
for "engaging in domestic violence," and removing their children, and
that such a policy was unconstitutional. Since June, 2002, the City has
operated under an order barring the City from continuing to remove
children from victims of domestic violence and from charging them with
child neglect.
Nicholson v. Scoppetta is the first lawsuit in the country
challenging government practices that victimize battered mothers and
their children.
The plaintiff mothers are represented by the law firm Lansner &
Kubitschek and Jill Zuccardy, Esq. of Sanctuary for Families' Center for
Battered Women's Legal Services. Legal Aid Society and Lawyers for
Children represent the children in the lawsuit.
Nicholson v. Scoppetta, United States Court of Appeals
The United States Court of Appeals for the Second Circuit issued an
important and favorable ruling in Nicholson v. Scoppetta,
2003 WL 22130666 (2d Cir. 2003). The court found that New York City
Administration for Children's Services had a policy of charging victims
of domestic violence with being neglectful as a result of "exposing"
their children to domestic violence and removing their children. The
court found that the problem was sufficiently widespread to require
judicial intervention. The court also found that such policies could
be unconstitutional. The court stated that New York law on the subject
was not clear and referred three questions to the New York Court of
Appeals in Albany: Whether allowing your child to witness domestic
violence against yourself constitutes neglect under New York law;
whether the injury, if any, to the child from witnessing the domestic
violence constitutes imminent risk allowing ACS to remove the child
without court order; and whether allowing the child to witness such
domestic violence is sufficient to allow a Family Court order of removal
without additional, particularized evidence.
The decision leaves the preliminary injunction in effect and has held
the appeal in abeyance pending the determination by the New York Court
of Appeals. The court also found that plaintiffs has not waited too long
to seek a preliminary injunction. The decision was written by Judge
Katzmann and joined by Judge Oakes. Judge Walked dissented. The court did
not deal with the assigned counsel payment rate at this time.
The New York Court of Appeals will schedule arguments on the questions,
and may accept further briefs on the issue.
Nicholson v. Williams, US Court of Appeals Decision, September, 16 2003,
344 F.3d 154 (2d Cir. 2003)
Other Nicholson Documents
-
Nicholson v. Williams, Decision on Preliminary Injunction,
March 18, 2002, 203 F.Supp. 2d 153 (E.D.N.Y. 2002)
-
Nicholson v. Williams, Preliminary Injunction,
January 3, 2002, 181 F.Supp. 2d 182 (E.D.N.Y. 2002)
-
Nicholson v. Williams, Class Certification Order, August 16, 2001,
202 F.R.D. 377 (E.D.N.Y. 2001)
-
Nicholson v. Williams, Summary of Decision
- Fourth Amended Complaint Class Action
Lansner & Kubitschek would like to
thank all those who submitted amicus
briefs in Nicholson v. Scoppetta.
Nicholson Review Committee
The Nicholson Review Committee Report
is now available.
"In anticipation of the preliminary injunction ending, we
[the Nicholson Review Committee] would like to summarize our major
activities related to enforcement and compliance, including the status
of the complaints we've received, and provide an assessment of how ACS
compliance is proceeding, particularly as this may bear on future actions
taken by the court or other parties."
Abuse in Foster Care
Foster Children in California and eight other western states will be
safer in their foster homes as a result of an appeal argued by Carolyn
A. Kubitschek before the United States Court of Appeals for the Ninth
Circuit.
The Ninth Circuit en banc ruled that foster children who are placed
in dangerous foster care placements can sue the agencies and staff
who failed to protect them from harm. The Court overruled its
14-year-old precedent which had given absolute immunity from liability
to foster care organizations and staff.
- Miller v. Gammie, (July 9, 2003) 335 F.3d 889 (9th Cir. 2003).
Landmark Preservation
The New York City Landmarks Preservation Commission has
designated our building, at
325 Broadway, a historical landmark.
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