Lansner and Kubitschek: News

United States District Court,
E.D. New York.

Sharwline NICHOLSON, individually and on behalf of her infant children, and on
behalf of all others similarly situated, and J.A. and G.A., infants on behalf
of all others similarly situated, Plaintiffs
v.
Nat WILLIAMS, et al. Defendants.
Ekaete UDOH, individually and on behalf of her infant children, and J.A. and
G.A., infants on behalf of all others similarly situated, Plaintiffs
v.
Nicholas SCOPPETTA, et. al. Defendants.
Sharlene TILLETT, individually and on behalf of her infant children, and J.A.
and G.A., infants on behalf of all others similarly situated, Plaintiffs,
v.
Nicholas SCOPPETTA, et al. Defendants.

No. 00-CV-2229, 00-CV-5155, 00-CV-6885.
March 18, 2002.

Lansner & Kubitschek, New York, By David Lansner, Esq., Carolyn Kubitschek, Esq., Joanne Sirotkin, Esq., Sanctuary for Families, Center For Battered Women's Legal Services, New York, By Jill Zuccardy, Esq., for Plaintiffs Subclass A.

Legal Aid Juvenile Rights Division, By Monica Drinane, Esq., Leslie Abbey, Esq., Barrie Goldstein, Esq., Kay G. McNally, Esq., Judith Waksberg, Esq., Henry Weintraub, Esq., Lawyers for Children, New York, By Karen Freedman, Esq., Karen Walker Bryce, Esq., Betsy Kramer, Esq., for Plaintiffs Subclass B.

Martha Olson, Esq., Citizens' Committee for Children, Riverdale, for Next Friend of Children in Subclass B.

New York City Law Department, Office of the Corporation Counsel, Brooklyn, By Michael D. Hess, Esq., Jonathan Pines, Esq., Martha Calhoun, Esq., Carolyn Wolpert, Esq, Daniel A. Shacknai, Esq., Administration for Children's Services Deputy General Counsel, New York, for Defendant City of New York and Administration for Children's Services.

NYS Attorney General, New York, By William H. Bristow III, Esq., Robert Kraft, Esq., for Defendant State of New York and Governor George E. Pataki.

Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., Washington, D.C., By Greg E. Haber, Esq., Fernando R. Laguarda, Esq., Noam B. Fischman, Esq., for Amici National Network to End Domestic Violence and National Network to End Domestic Violence Fund.

Law Offices of Joanne C. Fray, Lexington, MA, By Joanne C. Fray, Esq., Helene Sullas Huggins, Esq., for Amicus National Coalition for Child Protection Reform.

Missouri Coalition Against Domestic Violence, Jefferson City, MO, By Nina Balsam, Esq., for Amicus Missouri Coalition Against Domestic Violence Against Women.

Davis Polk & Wardwell, New York, By Frank S. Moseley, Esq., Zachary S. McGee, Esq., Joan Loughane, Esq., Kelli J. Stenstrom, Esq. , Of Counsel, New York County Lawyer's Association, New York, By Craig A. Landy, Esq., Norman L. Reimer, Esq., for Amicus New York County Lawyers' Association.

Ohio Domestic Violence Network, Columbus, OH, By Alexandria M. Ruden, Esq., for Amicus Ohio Domestic Violence Network.

The evidence 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.

This class action is brought on behalf of abused mothers and their children who are separated from each other because the mother has suffered domestic abuse and the children are for this reason deemed neglected by the mother. Three sometimes conflicting principles control: First, as a parent, a mother has rights to uninterrupted custody of her children and a child has rights to remain with parents; within wide limits, adults and children in a household are immune from state prying and intrusion. Second, domestic abuse--particularly if physical--of a mother or child will not be tolerated. Third, the state has the obligation to protect children from abuse, including, where clearly necessary to protect the child, the power to separate the mother and child. It is this third element that the defendants are misusing in unjustified reliance on the second and in violation of the first. The resulting denial of constitutional rights of both mothers and children cannot go unchecked.

The term "mother" includes other legal or actual custodians of children; it usually is a female, but in relatively rare cases, the abused custodian will be a male. The abuser is usually a member of the household, such as a husband, paramour, father of the children, or person having such a relationship with the mother in the past.

In a heterogeneous, non-theocratic and democratic society such as ours, there is enormous diversity in domestic relationships and in the degree that they are founded on mutual respect and love (the norm) or malevolence. Particularly if there is a sexual relationship between the adults, the emotional interaction may be intense, sometimes flaring into psychological or even physical abuse. The abuse may be endemic. It may be directed against the children as well as the mother. The children may be indirectly affected, as when they observe an abusive incident. Even when the abuse is not physical, it may be so fierce as to be the equivalent of a beating. See Poppe v. Poppe, 144 N.E.2d 72, 75 (N.Y.1957) (Fuld, J.) ("statements made ... may have an effect no less cruel and no less destructive of the marital relation, though their impact be upon the mind and spirit rather than the body."). The mother may lack the ability or resources to either protect herself or the children. Economic, emotional, moral or other ties may, as a practical matter, prevent the mother from separating from the abuser or seeking governmental protection against him. She may hope for eventual reconciliation--and sometimes it does occur. Myriad subtle reasons may prevent her from separating from the abuser, protecting the children, or seeking assistance. In some households ethnic or social mores are relied upon to justify abuse as a "traditional right." Ability to deal with tensions induced by self, a partner, children, and economic and social factors varies enormously among those who become embroiled in domestic violence. In short, this case presents the most intricate and recondite relationships, the stuff of thousands of novels, poems, newspaper accounts, and legal proceedings.

Whatever the explanation, physical abuse of mothers and children, or the imminent threat of such ill treatment is not tolerated in our American society. Whether the mother, the family, or the immediate social group accepts cruelty as the norm or as permitted, it is a minimum assumption of our twenty-first century United States that it will not be tolerated. The government has the obligation to stop it and to prevent its recurrence whenever it can.

In April 2000 Sharwline Nicholson filed a complaint on behalf of herself and her two children, Destinee Barnett and Kendell Coles, against officers and employees of the Administration for Children Services and the City Of New York ("City defendants"). A few months later, Ekaete Udoh filed a similar action on behalf of herself and her four children, Edu, Ima, Nsikak and Asuno. On November 20, 2000, a complaint was filed by Sharlene Tillett on behalf of herself and her two children, Winston Denton and Uganda Gray. City defendants answered and discovery commenced.

In January 2001, plaintiffs moved for class certification. Fed.R.Civ.P. 23. In view of a potential conflict between the interests of the children, the battered mothers, and alleged batterers, the court ordered creation of a subclass of children, subclass B, and appointed counsel for this subclass. The mothers were organized into subclass A and were represented by their original counsel. The court announced by published memoranda and advertising that it was prepared to recognize a subclass of alleged batterers who might have an interest in not being separated from the children or the mothers; no representatives came forward and the court determined that the case could proceed effectively without this potential subclass. New representative plaintiffs were added or substituted.

A next friend was appointed to protect the interests of the children. Various friends of the court participated in the litigation.

Sometime after the case had been pending subclass A amended the complaint to state a cause of action against the State of New York and some of its officials. The State itself was dismissed on consent.

In June 2001, the court directed the parties to submit briefs on whether a preliminary injunction was warranted. That month, plaintiffs moved for a preliminary injunction against City defendants.

On July 9, 2001, a trial began on whether class certification was appropriate and whether and in what form a preliminary injunction should issue. The trial lasted for twenty-four trial days, forty-four witnesses testified, 212 documents were introduced, and extensive briefing and argument followed. After the trial concluded at the end of December, following further briefing and documentary supplementation of the record, a memorandum and preliminary injunction were issued. 181 F.Supp.2d 182 (E.D.N.Y.2002). Operation of the injunction was stayed until June 22, 2002, except for the requirement of monthly reports from the City defendants on the steps they were taking to protect the subclasses' rights. This present memorandum further explicates the reasons for the preliminary injunction.

Responsibility for governmental protection of children rests primarily on the state or municipality. See, e.g. Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hast. L.J. 1, 19-26 (2001) (various forms of direct state intervention in child abuse and neglect matters). The federal government assists with statutory protection and funds. See, e.g., Child Abuse Prevention and Treatment Act ("CAPTA"), P.L. 93-247, 88 Stat. 4 (1974), amended byP.L. 104-235, 110 Stat. 3063 (1996) (CAPTA provides federal funding to states, provides grants to public agencies and nonprofit organizations, identifies the Federal role in supporting research, establishes the Office on Child Abuse and Neglect, and sets forth a minimum definition of child abuse and neglect.).

The State of New York has enacted laws aimed at protecting children from abuse and neglect. See, e.g.,N.Y. Fam. Ct. Act §§ 1011-1121 (Consol.2001) (Family Court's civil jurisdiction to protect children from abuse and neglect); N.Y. Penal Law § 260.10(2) (Consol.2001) (abuse or neglect of a child is a misdemeanor). A state agency, the Office of Children and Family Services ("OCFS"), regulates and monitors local service agencies and maintains the State Central Register for Child Abuse and Maltreatment ("SCR"). The State largely delegates responsibility for enforcing child protection laws to counties and municipalities. In New York City, the primary responsibility for protection of children against abuse is assigned to the Administration for Children's Services ("ACS"). It is assisted by such agencies as the Family Court, District Attorneys' offices, the City Police Department, and many public and private institutions.

SCR serves as the conduit through which all investigations of child abuse and neglect are initiated. Tr. 1130. SCR maintains a telephone hotline with a toll- free number, staffed twenty-four hours a day, seven days a week, to receive information about child abuse, child neglect, or child maltreatment. N.Y.Soc. Serv. Law § 422(2)(a) (Consol.2001). Anyone who believes a child is being abused or neglected is free to report to SCR. Individuals in specified positions and professions such as health care professionals, school officials, social services workers, day care center employees, and law enforcement personnel are required by law to report such suspicions to the SCR. Id. §§ 413, 414. A person who makes a report is immune from liability even if the report is eventually proven false, unless it was made in bad faith. Id. § 419.

SCR screens reports it receives to ensure that the allegations and identifying information are sufficient to begin an investigation. Id.§ 422(2)(b); Tr. 673, 684-85. If the report passes this initial screening, SCR transmits the report as well as any background information to a field office in the county where the child is located. Tr. 673. The Administration for Children's Services (ACS) is responsible for investigating reports involving children in New York City. There is an ACS field office in each of New York City's five boroughs.

When an ACS field office receives a report from SCR, an applications worker forwards it to a Supervisor II ("Supervisor"). The Supervisor assigns a Caseworker to investigate. A Child Protective Manager (CPM) oversees the Supervisor--Caseworker team and approves major decisions such as removing a child or prosecuting a mother.

ACS is responsible for completing its investigations of complaints referred by SCR within sixty days. Id. §§ 424(6), 424(7). When the investigation is completed, ACS must determine whether there was "credible evidence" to support the allegations. If ACS concludes there is such evidence, it declares the report "indicated." Otherwise, it declares the report "unfounded." N.Y. Soc. Serv. Law §§ 412(5), 412(6), 424(7) (Consol.2001). ACS transmits its conclusions and supporting reasons to SCR. Id.§ 424(3). Neither the SCR nor any other State department independently assesses the ACS conclusion.

If ACS determines that a complaint is unfounded, SCR seals all information in its files regarding the report. If ACS determines that there is some credible evidence to support the charges, SCR retains all information in its database until the family's youngest child reaches the age of twenty-eight. Id.§ 422(6). There is no formal hearing at which the parents have the right to be heard before this report is filed.

A report of "indicated" can have severe consequences. While SCR is required to keep report records confidential, many individuals and organizations are statutorily authorized to access the records. Id.§ 422(4)(A). For example, when a person seeks a job that involves working with children, the employer must inquire of SCR (and SCR must respond) whether the parent is the subject of an indicated report. Id.§ 422(4)(A). Such an employer may not hire an applicant who is the subject of an indicated report unless it submits a written statement explaining why they are hiring a person who has reportedly neglected her own children to work with other people's children. Id. § 424-a(2)(a); Tr. 1056 (ACS employee testifying that being the subject of an indicated report will make obtaining employment in certain capacities more difficult); Ex. 189.

ACS has discretion to commence child protective proceedings against the parents in Family Court during the investigation, or after the investigation if the report is determined indicated. N.Y. Fam. Ct. Act § 1032(a) (Consol.2001); N.Y. Soc. Serv. Law §§ 397(2)(b), 424(11) (Consol.2001). As the petitioner, ACS prosecutes actions brought in Family Court. N.Y. Fam. Ct. Act § 1032(a) (Consol.2001). ACS also has discretion to refer cases to the District Attorney for investigation and possible criminal prosecution. N.Y. Soc. Serv. Law § 424(11) (Consol.2001). ACS commences an action by filing a petition under Article 10 of the Family Court Act. Its own attorneys draw up the petition after consulting agency personnel.

Once ACS has filed a petition, the Family Court is required to hold a preliminary hearing "as soon as practicable" to determine whether the child's interests require protection pending a final order of disposition. N.Y. Fam. Ct. Act § 1027(a) (Consol.2001). The court has the power to order removal of the child if that is necessary to avoid imminent danger to the child's life or health. Id.§ 1027(b)(i). Among other factors, the court is to consider whether ACS made appropriate and reasonable efforts to prevent or eliminate the need for removal. Id.§ 1027(b)(i). The court also determines preliminarily whether imminent risk would be eliminated by a temporary order of protection directing the removal of a person or persons from the child's residence; it is authorized to grant such orders by section 1029 of the Family Court Act.

If it determines that there is not enough time to file a petition and hold a preliminary hearing, ACS is authorized to seek, and the Family Court to issue, a preliminary order of removal. Id. § 1022. The court considers available protective services, including the removal of offending persons from the residence, in deciding whether to issue such an order. Id.

Only if ACS decides that there is not even time to obtain this expedited preliminary order may it remove a child from parents without a court order. Id. § 1024, N.Y. Soc. Serv. Law § 417 (Consol.2001). See also Tenenbaum v. Williams, 193 F.3d 581, 594 (2d Cir.1999). The test for emergency removal is characterized as an objective one, not one based on appearances. SeeN.Y. Fam. Ct. Act § 1024(i)(a) (Consol.2001); see alsoN.Y. Fam. Ct. Act § 1024, cmt. (practice commentary) (McKinney 1999) ("This section places a further restriction on removal without prior court order by establishing a factual, objective test rather than one based on state of mind."). If the ACS removes a child without a court order it file a petition "forthwith," which is generally taken to mean within twenty-four hours and no more than three business days. See id. § 1026(c) & cmt. (practice commentary).

If a child is removed prior to a court order issued after a hearing where the parents were present and had the opportunity to be represented by counsel, the parents have the right to apply for a court hearing to secure the child's return. Id. § 1028. This hearing is required to take place within three days of the application. Id. The court must consider the same factors, including services and orders of protection, as it does at a removal hearing under sections 1022 or 1027. Id.

Instead of returning full custody of a removed child to a parent, the Family Court may parole the child to the parent pending the outcome of the proceedings. Parole is common. A paroled child returns to live with the parent, but ACS is usually given broad supervisory powers, including the right to make unannounced home visits and to insist that the parents participate in certain services. Tr. 351.

After provisional arrangements for the child have been addressed, the court proceedings move to the fact-finding stage. Often, several months will pass before a fact-finding trial is commenced. The hearing itself may take months because of lengthy adjournments. Tr. 334, 366. If, after this fact- finding trial, the court makes a finding of neglect, a dispositional hearing follows. Commonly, the entire process is very lengthy. As ACS Commissioner Nicholas Scoppetta confirmed; "Once you are in the Family Court, you are in it very often for many months before you can get to the substance of the case...." Tr. 2505.

Many cases never reach the dispositional phase. ACS often engages in settlement negotiations with parents. A settlement may involve the parents admitting to allegations in the petition. It may include an adjournment in contemplation of dismissal (ACD), adjourning court proceedings with the understanding that ACS will agree to a dismissal of the petition after a period of time, usually six to twelve months, during which the parents must cooperate with ACS supervision and fulfill conditions. Tr. 332-33.

A few instances will illustrate how the ACS system results in the forcible and unjustified separation of abused mothers and their children.

Sharwline Nicholson is a thirty-two year old working mother of two. For the past two years, Ms. Nicholson has both worked full-time as a cashier at Home Depot and taken classes full-time at Mercy College, where she is pursuing a degree in Behavioral Sciences. While she manages this busy schedule, Ms. Nicholson has made arrangements for her children to be cared for. When she is working, her son is in school and her daughter is at day care. When she is at school, she takes her son with her and leaves her daughter with a baby-sitter. Ms. Nicholson has lived at the same address in Brooklyn for the past seven years.

This plaintiff has always been a single mother. Ms. Nicholson's son, Kendell Coles, is eight years old. His father has never been a part of his life. Ms. Nicholson's daughter, Destinee Barnett, is three years old. Destinee's father, Mr. Barnett, never lived with Ms. Nicholson but traveled from his home in South Carolina to visit with Ms. Nicholson and Destinee on a monthly basis for the first nine months of Destinee's life.

Prior to an attack by Mr. Barnett on Ms. Nicholson in 1999, ACS had only had contact with Ms. Nicholson once before. There was a report that Mr. Barnett had struck Kendell in the face as a result of a bad report from school; Kendell suffered a "sore mouth" and had a "slight marks on the lips." Ex. 190 at 101012. ACS investigated the case and decided the report was indicated as to Mr. Barnett, but was not indicated as to Ms. Nicholson. Ex. 190 at 101015. ACS noted that "[Ms. Nicholson] seems very attentive to child's needs .... He is receiving occupational therapy, speech therapy, and counseling in school. [Ms. Nicholson] feels that these services are adequate, and that outside intervention is not necessary." Ex. 190 at 101013.

Early in 1999, during one of his visits, Ms. Nicholson told Mr. Barnett that she was breaking off their relationship because they lived so far apart. Mr. Barnett, who had never previously assaulted or threatened Ms. Nicholson, flew into a rage. He punched her, kicked her, and threw objects at her. When he left, her head was bleeding profusely.

Throughout the assault, Destinee was in her crib in another room. Kendell was at school. After the attack, Mr. Barnett left the apartment. Her head bleeding, Ms. Nicholson called 911. Before the ambulance arrived, Ms. Nicholson asked her neighbor, Anna Thomas, a baby-sitter who Ms. Nicholson had relied on in the past, to care for her children while she was away at the hospital. Anna agreed to pick up Kendell at his bus stop when he returned from school.

At the Kings County emergency room, CAT scans and X-rays revealed that Ms. Nicholson had suffered a broken arm, fractured ribs, and head injuries. That evening, three police officers came to visit her at the hospital. The officers told Ms. Nicholson that, since she would be staying the night at the hospital, it would be better if her children could stay with a family member than with the babysitter. The officers asked Ms. Nicholson for the names and phone numbers of any family members that might be able to care for the children. Ms. Nicholson complied, providing the officers with the numbers for two of her cousins, Marcia Roseboro and Michelle Brown, and of Destinee's godmother, Marleen Hickman. The officers also asked about Mr. Barnett. Ms. Nicholson identified him from a photograph and provided information.

On January 27, the same evening as the assault, the evening branch of ACS (ECS) directed the 70th Precinct to take Ms. Nicholson's children from the babysitter and to transport them to ECS. Tr. 849. The children stayed that night in the nursery at ECS. Tr. 850. The following day, January 28, an ACS worker called Ms. Nicholson at the hospital. The worker informed Ms. Nicholson that ACS had possession of her children and that if she wanted to see them she had to appear in court the following week. The worker refused to tell Ms. Nicholson where her children were. Ms. Nicholson testified that this news left her "very upset ... [and] devastated." Tr. 733. Ms. Nicholson demanded that the hospital discharge her immediately so that she could get more information about her children. She was discharged, but the hospital informed her that the police had left word that she was not to return to her apartment. Ms. Nicholson made arrangements to stay with a cousin, Glynis Hall.

CPM Williams was assigned to oversee the Nicholson case. Tr. 847. CPM Williams was concerned by the notation in the report ACS received from the State Central Register that Mr. Barnett had threatened Ms. Nicholson with a gun. Tr. 863. Although CPM Williams testified that such allegations require independent investigation by ACS workers, Tr. 864, he never inquired of Ms. Nicholson whether Mr. Barnett had in fact brandished a firearm during the assault. Tr. 863. Ms. Nicholson testified that she did not know whether Mr. Barnett beat her with or had a gun during the assault, but that she told police it was possible. Tr. 759. CPM Williams testified that he believed that the children were in "imminent risk if they remained in the care of Ms. Nicholson because she was not, at that time, able to protect herself nor her children because Mr. Barnett had viciously beaten her." Tr. 864.

CPM Williams testified that, under ACS policy, victims of domestic violence are permitted to make decisions about who will care for their children, and that these decisions do not require court approval. Tr. 856. He nevertheless rejected Ms. Nicholson's proposals for relatives who could care for the children. Ms. Nicholson first requested that her children be allowed to stay with her cousin, Michelle Brown, in New Jersey. Mr. Williams testified, "I rejected that because she lived in another state. I offered her as alternative, you can give me relatives who live within the Metropolitan area." Tr. 857. Williams testified that he imposed this condition because he believed that in order to put children in the care of an out-of-state relative he needed to obtain a court order, but he did not try to obtain such an order. Tr. 860. Ms. Nicholson proceeded to offer a cousin who lived in the Bronx as a potential caretaker. Tr. 861. Williams did not allow the children to go to the cousin's care either. Tr. 861. Instead, he decided to place the children in foster care with strangers. Tr. 850.

Although the children were placed in foster care by ACS on January 28, a Thursday, no petition was filed in court until February 2, the following Tuesday. Ex. 186; Tr. 852. Williams conceded that, as of January 28, he knew that the children were in ACS's care without legal authorization. Tr. 851. He explained that he was hoping Ms. Nicholson would cooperate with his demands in order to avoid going to court. Tr. 855.

CPM Williams gave conflicting testimony regarding how quickly ACS is required to file a petition with the court once children are taken into foster care. In his testimony before this court, he affirmed that ACS is "required" to go to court the next business day after placing a child in foster care, Tr. 853, that ACS "should try" to do so, Tr. 853, and that in domestic violence cases, it is common to wait a few days before going to court in order to "try to work things out with the mother." Tr. 852. In his deposition, with which he was confronted in court, Tr. 853-54, Williams stated that he had "been told in training" that ACS has "several days" after a child is removed before it is required to go to court to get approval. Williams Depo. 93. He conceded that it is common in domestic violence cases for ACS to wait a few days before going to court after removing a child because, after a few days of the children being in foster care, the mother will usually agree to ACS's conditions for their return without the matter ever going to court. Tr. 852-53. Set out below is some of his understanding of ACS practice as revealed in his testimony:

When the petition was filed with the Family Court on February 2--five days after ACS had seized the children--it was filed as a neglect petition against Ms. Nicholson as well as Mr. Barrett. Ex. 186. CPM Williams testified that, as of the filing of the petition, he did not believe that Ms. Nicholson was actually neglectful; he hoped that "once she got before the Judge, that the Judge would order her to cooperate with realistic services to protect herself and the two children...." Tr. 868. It was CPM Williams' belief that Ms. Nicholson was an inadequate guardian, because she was "refusing to deal with the reality of the situation," that he could not allow the children to stay with the relative in New Jersey, and that it would be unsafe for her to return to her Brooklyn residence with her children. Tr. 868-69. Had he made inquiry, he would have learned that Mr. Barnett, the abuser, had never lived at the Brooklyn apartment with Ms. Nicholson, that he did not have a key to the apartment, and that he lived in South Carolina. Tr. 726. Another basis for CPM Williams' attempted justification was that Ms. Nicholson had failed to follow ACS's instruction that she obtain an order of protection from a local police precinct. Tr. 871-72. Ms. Nicholson had in fact attempted to do so, but had been denied an order because Mr. Barnett lived out of state and she did not know his address. Ex. 191. She had informed CPM Williams of this fact. Tr. 871.

The petition of neglect filed by ACS against Ms. Nicholson and Mr. Barnett included three allegations of neglect. The first count, directed solely against Mr. Barnett, alleged excessive corporal punishment. The second count, directed against both parents, alleged that "[r]espondents engage in acts of domestic violence in the presence of the subject child, Destinee. As a result of one such fight, on or about January 27, 1999, the respondent mother suffered a broken left arm and a head injury caused when the father struck her with a gun." Ex. 4a at 106335. This count made no distinction between the culpability of batterer and victim. The final count was directed solely against Ms. Nicholson, and alleged simply that she "fails to cooperate with offered services designed to insure the safety of the children." Id. There were no specific indications of what services she had failed to cooperate with, or how any failure constituted neglect.

As she had been directed to do by ACS, Ms. Nicholson appeared at Family Court in Brooklyn on Tuesday, February 2. She did not have, and was not provided with, legal representation for this hearing. ACS was, of course, represented by one of its lawyers. The Family Court ordered the children remanded to the custody of ACS pending an order of final disposition. Ms. Nicholson testified that she was not even aware that this order was issued. Tr. 743. Only after the hearing was completed and the order issued was this mother contacted by her appointed 18-B lawyer. Tr. 743.

On February 4, after she had been separated from the children for a full week, Ms. Nicholson appeared in Family Court a second time, now represented by 18-B counsel. Tr. 744. The Family Court ordered that Ms. Nicholson's children be paroled to her, on the condition that she and the children not return to Ms. Nicholson's address in Brooklyn, but instead live with her Bronx cousin. Tr. 744.

On February 5, eight days since she had last been permitted to see or speak with her children, Ms. Nicholson was at last permitted by ACS to visit with them. The supervised visit occurred at the ACS foster agency in Queens. Tr. 745. Ms. Nicholson was able to locate her daughter within the building by following the sounds of her crying. Tr. 746. When Ms. Nicholson found her daughter she was "sitting on a chair by herself with tears running down." Tr. 746. Destinee had a rash on her face, yellow pus running from her nose, and she appeared to have scratched herself. Tr. 746. Her son had a swollen eye. Ms. Nicholson demanded use of a phone to call the police, but she was refused. She called from a pay phone across the street. Tr. 747-48. When the police arrived, Ms. Nicholson filed a report on behalf of her son, who told her that his eye was swollen because the foster mother had slapped his face. Tr. 747. Following Ms. Nicholson's report, ACS arranged for a different foster mother to have Ms. Nicholson's children. Tr. 747. When the new foster mother arrived at the agency to take Ms. Nicholson's children at the end of the visit, her boy, Kendell, asked the new foster mother, "You are not going to hit me, are you?" Tr. 748.

On February 9, twelve days after the forced separation, Kendell had his sixth birthday. Ms. Nicholson was not allowed to see or speak with him on that day. Tr. 748.

On February 18, twenty-one days after the separation and fourteen days after the Family Court had paroled Ms. Nicholson's children to her, ACS returned her children to her. Tr. 750. The reason ACS gave for this delay, Ms. Nicholson testified without contradiction, was that after the court paroled the children to her, an ACS caseworker decided that the children would not have adequate bedding at the cousin's house in the Bronx that Ms. Nicholson was to stay at. ACS provided no assistance to Ms. Nicholson in moving the children's bedding from her Brooklyn residence--which she had been ordered not to enter because of potential danger to her--to the cousin's Bronx apartment.

Following the return of Ms. Nicholson's children, ACS claimed to have difficulty visiting with her and her children at her cousin's Bronx residence. There is conflicting testimony on this issue. Ms. Nicholson testified that ACS made an unannounced attempt to visit her once at the cousin's house when she was not there, that she subsequently called to schedule a new appointment, and then had to cancel this appointment because of a snowstorm. Tr. 751-52. CPM Williams testified that, from February 18 until April 21, the caseworker made "six or seven" attempts to visit Ms. Nicholson and the children, that some of these visits were unannounced, and that Ms. Nicholson called the ACS offices "several different times." Tr. 879-81. A warrant application filed by ACS on March 15 stated that the ACS caseworker had made several attempts to visit Ms. Nicholson at both her cousin's Bronx address and her original Brooklyn address, and that Ms. Nicholson had not returned the caseworker's messages. Ex. 188.

The warrant ACS requested was granted. Afraid that ACS would take her children, Ms. Nicholson sent them to stay temporarily with her father in Jamaica. Tr. 754. Meanwhile, Ms. Nicholson made several attempts to contact her 18-B attorney. These calls were not returned. Tr. 755.

On April 7, as she was at the Post Office collecting her mail, two police officers arrested Ms. Nicholson, handcuffing her and taking her to the Family Court in Brooklyn. When Ms. Nicholson came before the Family Court that afternoon, she was represented by an 18-B attorney different from the one who had represented her before. She explained to the court that her children were in Jamaica. She was ordered to return to court on April 24. She did so, and on that date, the court permitted Ms. Nicholson to return to her own apartment in Brooklyn with the children. It required her to cooperate with supervision and services offered by ACS. After this hearing, ACS caseworkers visited Ms. Nicholson bi-weekly until August, when the petition against Ms. Nicholson was dismissed. Tr. 758.

ACS communicated to the State Central Register that the neglect report stemming from the domestic violence incident was indicated against both Mr. Barnett and Ms. Nicholson. Ex. 189 at 101042. Ms. Nicholson appealed this ruling. Tr. 766-67. She received confirmation that OCFS would conduct an administrative review of ACS's finding and notify her of the results. Ex. 189 at 101029. She has not yet heard from OCFS, so she remains on the State's records as a neglecting parent. Tr. 767.

April Rodriguez is the biological mother of two children, Elijah, age three, and Kayla, age two, and the step-mother of Jasmine, age seven. Tr. 379-80. She has cared for Jasmine since the girl was eighteen months old. Tr. 380. From 1995 until August 2000, Ms. Rodriguez had a relatively stable living arrangement with MichaelGamble, the father of the three children. Tr. 381-82, 525. During that period, the children were being properly taken care of and Mr. Gamble was never violent towards Ms. Rodriguez or the children. Tr. 382, 525- 26. Prior to her involvement with ACS, Ms. Rodriguez was employed as an assistant manager at a video rental store. Tr. 382.

On August 29, 2000, while the children were in their bedrooms, a verbal dispute in the hall of their apartment escalated and Mr. Gamble pushed Ms. Rodriguez onto the floor, scraping her mouth. Tr. 382-83. Although she was injured, Ms. Rodriguez did not believe the children were in any danger. Tr. 384. Mr. Gamble had never been abusive toward the children. Tr. 486. She reported the incident to the police the next day and Mr. Gamble was arrested. Tr. 384, 527.

After this incident, Ms. Rodriguez no longer felt safe living with Mr. Gamble at their Brooklyn home. Tr. 385. She fled with Elijah and Kayla first to her aunt's house, where she stayed for two weeks, and then to her grandmother's house. Tr. 386-87. Jasmine had been picked up at the police station by Mr. Gamble's sister, and then went to live with the paternal grandmother. Tr. 386. Ms. Rodriguez decided not to go to a domestic violence shelter because she was informed by domestic violence hotline counselors that she would have to quit her job in order to qualify. Tr. 387.

Within a week or two of the assault, an ACS caseworker, Ms. Williams, telephoned Ms. Rodriguez. Tr. 388. She informed Ms. Rodriguez that she needed to see the children because ACS was filing a petition against the father. Tr. 388. Ms. Rodriguez was also told that she was not a target of investigation. Tr. 388. Ms. Williams then visited Ms. Rodriguez at her grandmother's house, and told Ms. Rodriguez it would be appropriate for her and her children to live at the grandmother's house until Ms. Rodriguez had made enough money to afford her own apartment. Tr. 389. Ms. Williams also asked Ms. Rodriguez whether she wanted to go to a domestic violence shelter. Ms. Rodriguez told Ms. Williams that she preferred to stay at her grandmother's house in order to keep her job. Tr. 423.

Shortly after this meeting, Ms. Rodriguez was served notice that Mr. Gamble was seeking legal custody of the children. Tr. 389. Ms. Rodriguez began receiving telephone calls at work from various ACS staff. Tr. 389-90. On one occasion Ms. Rodriguez returned to the Brooklyn home where Mr. Gamble was residing to meet with Ms. Williams and Mr. Gamble to discuss the custody situation. Tr. 390.

On October 10, Ms. Rodriguez received a call at work from ACS demanding that she leave work and visit their offices immediately. Tr. 391. Ms. Rodriguez complied, and when she arrived at ACS, Ms. Williams and her supervisor, Mr. Bentil, told Ms. Rodriguez that she had been violating an order of protection. Tr. 391. What, if any, order of protection the ACS personnel were referring to has never been established. Both Ms. Rodriguez and James Stewart, the CPM later assigned to the case, testified they had never seen any such order of protection. Tr. 391, 456-57.

On October 11, Ms. Rodriguez was again called by ACS to a conference with Mr. Bentil, Ms. Williams, Mr. Gamble, Elijah and Kayla. Tr. 392. At that conference, Ms. Rodriguez signed an agreement transferring custody of the children to Mr. Gamble for six months, or until Ms. Rodriguez obtained an apartment of her own and day care for the children, whichever came earlier. Tr. 393, Ex. 92.

There was conflicting testimony as to how this agreement developed. Ms. Rodriguez testified that Mr. Bentil told her "that we needed to come up with an agreement between me and Mr. Gamble about my children, or [ACS] would go to court." Tr. 392. Ms. Rodriguez further testified that Mr. Bentil suggested the children should stay with Mr. Gamble, and that "[Mr. Bentil] kept getting by the door and telling me that he was going to go to court, and I kept asking, but why, if I have not done anything wrong? Then they finally came up with an agreement that [Ms. Williams] wrote up on ACS paper, stating that I would give my children to Mr. Gamble for six months, and had me sign the bottom of it ...." Tr. 393. By contrast, CPM Stewart testified that Ms. Rodriguez proposed the idea of allowing the children to stay with Mr. Gamble in order to avoid their being placed in foster care. Tr. 486-87.

The court credits Ms. Rodriguez's testimony. CPM Stewart had not yet been assigned to this case when the meeting in question took place and was not present. His account is secondhand.

It is undisputed that the children went to stay with Mr. Gamble after the agreement was signed. Tr. 393-94. At this point, Ms. Rodriguez had not yet gone to court. She had no attorney. Tr. 474.

At some point, ACS became aware that there had been a past allegation of sexual abuse against Mr. Gamble investigated by ACS. Ms. Rodriguez testified that she learned this for the first time from ACS at meetings on October 10 and 11. This information so concerned her that following the October 11 meeting she called someone at ACS about the issue. Tr. 397. Ms. Rodriguez testified that she then received a call from Mr. Gamble who told her "You really did it this time.... They are going to take the kids away." Tr. 398. Ms. Rodriguez then received a call from Mr. Bentil, who told her that she "had gotten them into trouble." Tr. 398. CPM Stewart testified that, on August 30, ACS only knew that Mr. Gamble had a case previously indicated with SCR, and that ACS did not learn that the prior case was for sexual abuse until October 13. Tr. 438, 448. Although it would have been simple to determine the nature of the indicated case by checking with the SCR, and it was apparently ACS policy to do so, CPM Stewart testified that nobody at ACS tried to do this. Tr. 446-47. CPM Stewart began taking an active role in the case on October 12, after the ACS central office called him and asked him to "look into the case and see what the situation was." Tr. 434. The evidence suggests that ACS did know of Mr. Gamble's prior indicated sexual offense early in the investigation, but that it nevertheless coerced Ms. Rodriguez into turning over custody of the children to her abuser.

On October 12, ACS visited the paternal grandmother, who was caring for the children on behalf of Mr. Gamble. Tr. 449. ACS asked the grandmother to "keep the children there" until they learned more about the father's status. Tr. 450. CPM Stewart directed Ms. Williams to tell both the mother and father that they could not take the children from the grandmother's house. Tr. 449.

ACS had not yet filed a petition or obtained a judicial order authorizing removal. CPM Stewart testified that "I didn't have enough information to go into court, but I did have enough to put the children into some type of secure environment outside of the father's home." The sole reason that Stewart gave for preventing the mother, Ms. Rodriguez, from having the children was because she lacked adequate housing. Tr. 453-54

On October 16, more than a month and a half after the assault on Ms. Rodriguez, ACS filed petitions alleging neglect against both Ms. Rodriguez and Mr. Gamble. Tr. 455. Although CPM Stewart testified that on October 12, he did not believe Ms. Rodriguez to be a neglectful mother, he apparently changed his mind prior to the filing of the petitions. Tr. 483. He explained that he changed his opinion because on October 13, he discovered that Ms. Rodriguez had been given an order of protection preventing Mr. Gamble from having custody of the children, and that she had failed to enforce this order by allowing Mr. Gamble to have custody of Jasmine Gamble. Tr. 456. CPM Stewart admitted that he had not seen this order when he made his decision, still had not seen it as of the hearing, did not know if it was in effect on October 13, and did not know the terms of this phantom order. Tr. 456-57. It also bears recollecting that five days before the petitions were filed, ACS had coerced Ms. Rodriguez to accept an arrangement by which she was required to temporarily transfer custody of all three children to Mr. Gamble.

The neglect petitions did not mention any failure to enforce an order of protection on the part of Ms. Rodriguez. Instead, they alleged that she and Mr. Gamble "engage in serious domestic violence in the home and in front of subject children." Ex. 91a, 91b, 91c.

After the petitions were filed in Family Court, the court remanded custody to ACS pending disposition. Ex. 182a, 182b, 182c. Two caseworkers, accompanied by police officers, went to the grandmother's house and removed the children to foster care. Tr. 401. On October 19, Ms. Rodriguez appeared Family Court. The court ordered ACS to parole the children to her. Tr. 404-05; Ex. L.

Despite the court order, the children were not immediately returned to Ms. Rodriguez, who was then living at her grandmother's home. Tr. 406. After her appearance before the Family Court, Ms. Rodriguez testified, ACS told her she would have to enter a domestic violence shelter before ACS would permit the children to be returned to her. Tr. 410. Additionally, ACS informed her that reunification would be delayed because the foster care mother had to be apprized and the children had to have a medical examination prior to their discharge. Tr. 408.

On October 25, because ACS had told her that they would not return her children to her unless she entered a shelter, Ms. Rodriguez entered the Emergency Assistance Unit (EAU). This is a temporary shelter where homeless people stay while they search for permanent shelter. Tr. 411. Late that day, Ms. Rodriguez's children were returned to her. Tr. 411. The children were in poor health. Ms. Rodriguez testified that the children "were not the same kids I gave [ACS]." Tr. 412. She recounted that:

The children had been discharged from foster care at approximately 6:00 p.m., but by 1:00 a.m., their mother was so alarmed by their physical condition that she took them to the nearby hospital emergency room. Upon their arrival at the hospital, all were regurgitating and both of the youngest children had ear infections. They were treated and antibiotics prescribed, with the youngest child also being given a cream for a festering facial infection. Tr. 412-13.

For the next week, Ms. Rodriguez and her children were shuttled back and forth every day between the EAU offices and a temporary evening shelter. Tr. 414. She and the three children were then placed in a shelter in the Bronx. Tr. 415. This shelter was not a domestic violence shelter. Its location was not confidential and there were no services for domestic violence victims or their children. Tr. 415. The space provided to Ms. Rodriguez and her children was one room with a bathroom. Tr. 415. The family stayed at this shelter until February, when she and the children were moved to a more permanent "Tier-2" facility. Tr. 416. Ms. Rodriguez was forced to quit her job because the strict curfew at the Tier-2 facility conflicted with the hours she was required to work. Tr. 417. Ms. Rodriguez, who had never before had to resort to welfare, now must rely on public assistance. Tr. 417.

CPM Stewart testified that neither Mr. Bentil, the case supervisor, nor Ms. Williams, the caseworker, did anything wrong in their handling of the Rodriguez case. Tr. 435-36. It was, in their opinion, in conformance with regular practice.

Ekaete Udoh is a forty-three year old working mother of five. She was born and raised in Nigeria. Tr. 959. In 1977, Ms. Udoh's family arranged to have her married to Eddey Udoh. Tr. 960. Ms. Udoh had never met him before; she was given no choice. Tr. 960. Following her marriage, Ms. Udoh came to the United States, where Mr. Udoh lived. Tr. 969. The couple had five daughters, ages twenty-three, nineteen, seventeen, fifteen, and thirteen. Ex. 192.

Ms. Udoh has worked for the Board of Education as a paraprofessional and teacher's assistant for eight years, assigned primarily to high school special education students. Tr. 958. She supports her four youngest daughters solely on the $23,000 salary that she earns. Tr. 958. Her oldest daughter, Edu, currently attends Binghamton University, and her second-oldest daughter, Ima, is attending Old Westbury College. Tr. 959.

Shortly after Ms. Udoh moved to the United States and joined Mr. Udoh in Kentucky, she became pregnant with her first daughter. The child was born prematurely in 1978, weighing only two pounds. Tr. 969. The premature birth was triggered by Mr. Udoh's beating her; Ms. Udoh testified that "Eddey was upset with me that I was pregnant with the first child. He wasn't ready for babies, and then it was just a little argument in the house that he beat me up." Tr. 970. From 1977 to 1982, while the couple lived in Kentucky, Ms. Udoh testified that Mr. Udoh "beat me up as many times as possible.... There were too many times. I can't recall all of them." Tr. 971.

Despite being unfamiliar with the American justice system when she arrived, Ms. Udoh soon became acquainted with it. Tr. 970. She called the police "many" times to report incidents of abuse by Mr. Udoh, but the police never arrested her husband. Tr. 971. The police did take her to a shelter once, when a neighbor called the police after witnessing Mr. Udoh chase Ms. Udoh, who was naked and bruised, out of their house, beating her. Tr. 971. The police left her children with Mr. Udoh, and Ms. Udoh returned to the family home three weeks later. Tr. 973.

The Udoh family moved to New York in 1984 after spending two years in Philadelphia where Mr. Udoh earned a graduate degree. Tr. 973. Mr. Udoh continued to beat Ms. Udoh regularly. In 1985, after another beating, Ms. Udoh again called the police. The police came, but did not arrest Mr. Udoh and did nothing to assist Ms. Udoh or her children in leaving the house. Tr. 975. Besides beating his wife, Mr. Udoh also beat the children with his hands or a belt. Ms. Udoh would try to intervene, talking with him to calm him down or, if that failed, calling the police. Tr. 975. The police never arrested Mr. Udoh. Tr. 977.

In 1995, Ms. Udoh went to court and obtained an order of protection ordering Mr. Udoh not to assault her. Ex. 199. Ms. Udoh did this without a lawyer's assistance. Tr. 979. The order did not require Mr. Udoh to move out of the house. Tr. 979. In 1996, Ms. Udoh went to court again and obtained a new order of protection. Ex. 200.

The father claimed the inherent right to beat his wife and children. An ACS investigation conducted in relation to Ms. Udoh's complaints included the following observations:

Ex. 112 at 000083. Despite this report ACS did not help Ms. Udoh leave or attempt to remove Mr. Udoh from thehousehold, or limit his contact with his wife or children.

In 1997, Ms. Udoh took the children and moved out of the home in Queens to a new residence in Brooklyn. Tr. 985. Mr. Udoh would not let her take her possessions, and Ms. Udoh obtained a court order authorizing her to collect her belongings with police protection. Ex. 202 at 003226. In 1998, Ms. Udoh filed a complaint that Mr. Udoh was violating an order of protection by making threatening calls to her. Mr. Udoh was arrested and spent one day in jail. Tr. 990. In 1999, due to financial difficulties, Ms. Udoh and her children moved back to the Queens residence with Mr. Udoh. Tr. 996. From January of 1999, when Ms. Udoh returned to live with Mr. Udoh, until May 1, 1999, Ms. Udoh testified that Mr. Udoh did not hit her or her children. Tr. 997.

In early May, after Ms. Udoh had fallen asleep, she was woken by the sound of Asuno, her daughter, screaming. Tr. 960. Ms. Udoh found her daughter crying in the bathroom; Asuno explained that her father had hit her in the eye because she was not able to fit all of the dirty dishes in the dishwasher. Tr. 961. Ms. Udoh tended to Asuno's eye with an ice pack and stayed up with Asuno the rest of the night. Tr. 961.

Ms. Udoh wanted to take Asuno to the doctor to get her eye examined, but she had to go to work first to get permission to take the day off, because she had already used all of her available sick days. Tr. 962. After receiving permission from her supervisor, Ms. Udoh went to the school. Tr. 962. School officials asked what had happened to Asuno, and Ms. Udoh explained that Asuno's father had hit her. Tr. 962. Ms. Udoh then took her daughter to the doctor. Tr. 962. The school guidance counselor called ACS to report the incident. Tr. 962.

After Ms. Udoh returned from the doctor, two ACS caseworkers visited the Udoh household and interviewed Mr. and Ms. Udoh, Asuno, and another daughter, Edu. Tr. 963. A caseworker informed Mr. Udoh that she would call the police if he continued to live at the Queens address. Tr. 964. Ms. Udoh and the children accompanied the caseworker to the ACS office. She and the children then filed a report with the police. Tr. 965. When Ms. Udoh returned home with her daughters, Mr. Udoh had left. Tr. 965. His clothes were gone. Mr. Udoh never returned to the home. In March of 2000, Mr. Udoh returned to Nigeria. Tr. 965, 1003-04, 1008-09.

While at the ACS offices, the ACS caseworker told Ms. Udoh to appear in Family Court the following day, May 6, at 2:00 P.M. Tr. 966. CPM Delamothe, who was assigned to the Udoh case, testified that on May 5, ACS did not consider the children to be in imminent danger if they remained with the mother. Tr. 1020. It was for this reason that it allowed Ms. Udoh to return home with her children. Tr. 966.

On the morning of May 6, CPM Delamothe directed the caseworker to meet with the legal department preparatory to filing a petition against Mr. Udoh. Tr. 1023. The legal department then called Delamothe and advised her that a legal basis existed to name Ms. Udoh as a respondent on the neglect petition as well on the basis that she had "engaged" in domestic violence. Tr. 1023; Ex. 160 A- C. CPM Delamothe decided to take this step. Tr. 1023. CPM Delamothe also authorized the immediate removal of Ms. Udoh's children on May 6, without a court order. Tr. 1012. She testified that the children were in "imminent danger" because Mr. and Ms. Udoh might "be in [Family] court at the return of the children from school and [the children] wouldn't have parents to come home to ...." Tr. 1026. Although the four children at home were ages twelve, thirteen, sixteen, and seventeen, CPM Delamothe was, she said, concerned they might not have keys to enter the house. Tr. 1026, 1027. CPM Delamothe could not recall whether the caseworker asked the children whether they had keys to the house when they were picked up by ACS, or whether the caseworker offered to wait with the children until Ms. Udoh returned from court. Tr. 1027.

Before Ms. Udoh left work to go to her scheduled court appearance, ACS called her to tell her not to come to court, and that her children had been removed from school and put in foster care. Tr. 967. CPM Delamothe testified that the removal of the Udoh children was in accord with ACS's stated policy of resolving any ambiguity regarding the safety of the child in favor of removing the child. Tr. 1034.

When the children were picked up from school by ACS, they were interviewed by a caseworker. Edu Udoh, then seventeen, told the caseworker that "I felt very comfortable staying with [my mother]. I am safe .... I told her I didn't think it was necessary to be removed, and I felt a great suffering if I was removed from my house ." Tr. 894-95.

On May 7 ACS filed neglect petitions against Ms. Udoh and her husband, alleging that, for approximately twenty years, she had "engaged in domestic violence" with him in the presence of the children. Tr. 968, 1030, 1033; Ex. 160 A-C. The petition also alleged, incorrectly, that the mother had never obtained an order of protection against Mr. Udoh as to the children. Ex. 160 A- C at 4. CPM Delamothe could not recall why this allegation was included; she conceded that she was aware that several orders of protections had been obtained. Tr. 1045-46. On page two of the petitions, there are only blank spaces where answers are required for why insufficient time was available to obtain a court order prior to removal and why removal of the children was necessary. Ex. 160 A-C.

Later that day, the matter was heard by the Family Court. It was adjourned so that ACS could investigate to determine whether the children could safely return home. Tr. 1046. On May 20, ACS agreed that it was safe for the children to return home; the Family Court then ordered the children paroled to the mother. Tr. 998, 1048. Yet it took eight days for ACS to notify the foster care agency with which the children had been placed that the court had ordered them paroled to Ms. Udoh. Tr. 1049-51; Ex. 79; Ex. 196. The delay prompted the Juvenile Rights Division of the Legal Aid Society, which was representing the children, to file on May 27 an application seeking the immediate release of the children from ACS custody. Ex. 195. In this application, the children's attorney noted that the delay in returning the children to their mother was harming the children, among other reasons, because "[t]hey have been missing classes because their foster mother is unable to get them to school on time" and, ironically, "the foster mother has refused to provide house keys to the children and they have been locked out of their foster home repeatedly." Ex 195; Tr. 901-02.

Edu Udo, one of the daughters, described her time at the foster home as "very uncomfortable;" the foster mother "treated us like we were criminals." Tr. 899. The Udoh children were locked in the house without access to the telephone when the foster mother would leave. Tr. 899-900. The forced stay in foster care was particularly hard on Edu because she was college-bound and in the midst of studying for her regents examinations. ACS refused to let her return home to retrieve her study materials. Tr. 898.

Following the return of her children, ACS contemplated withdrawing the petition as to Ms. Udoh. Ex. 197. Ms. Udoh was informed that, if she would testify against her husband, ACS would withdraw the charges against her. Tr. 999. Ms. Udoh met with ACS and prepared to testify against Mr. Udoh, but the petition was never withdrawn as to her. Tr. 1003. On October 13, 1999, the Family Court ordered the case adjourned in contemplation of dismissal. Tr. 198. ACS continued to visit Ms. Udoh for almost a year. Tr. 1004. When the caseworker would visit Ms. Udoh's house, she would "go though my refrigerator to look for food and she would go through the whole house to inspect it." Tr. 1004. Ms. Udoh was also required to provide the children's school and medical records to the caseworker during these visits. Tr. 1004. The abuser was during all this time in Nigeria.

Sharlene Tillett has two children, Winston and Uganda. In 1995, Ms. Tillett moved from Belize to New York to join her husband, Winston Denton Sr., who was already living there. Ex. 77 at 22. She had been married to Winston Denton Sr. for four years. During that time there had been sporadic incidents of domestic violence but no child abuse. Ex. 77 at 22. Shortly after arriving in the United States, Ms. Tillett and her husband separated.

Ms. Tillett moved to California. There, she began a three-year relationship with Jamie Gray. The couple eventually moved back to New York. During this period, there were "isolated episodes" of domestic violence against Ms. Tillett sparked by Mr. Gray's jealousy over Ms. Tillett's estranged husband. In 1999, two months before the birth of Uganda, Ms. Tillett arranged to have her son Winston live with relatives in California because she did not want Winston to witness her being battered by Mr. Gray. Tr. 1061.

On August 19, 1999, Ms. Tillett visited a hospital and informed the staff that Mr. Gray had choked her; at this time, Ms. Tillett was expecting the birth of her second child, Uganda. Ex. 77 at 4. She was sent home. Two days later, on August 21, she returned to the hospital in labor, and delivered Uganda that afternoon. Tr. 1057; Ex. 77 at 4. While at the hospital, Ms. Tillett informed the staff that there was a history of domestic violence against her by Mr. Gray. Ex. 77 at 4. After she and her newborn were cleared to be released, Mr. Gray arrived at the hospital and drove Ms. Tillett and Uganda home. Ex. 77 at 7. According to Ms. Tillett, she accepted a ride with him because she did not want to cause a commotion at the hospital; he did not come into her apartment after he dropped her off. Ex. 77 at 7.

On August 23, the hospital made a report to State Central Register, which transmitted it to ACS for investigation. CPM Delamothe was assigned to oversee the case. Tr. 1060. The following day, a caseworker visited Ms. Tillett at her home. The caseworker found the baby to be "very healthy... clean and neat," with clothing and pampers. Tr. 1061. The caseworker did not remove the child. Tr. 1062-63.

The caseworker returned to the office and reported to her supervisor, who in turn reported to CPM Delamothe. Tr. 1063. CPM Delamothe, who had not herself spoken with or interviewed Ms. Tillet, directed that the caseworker return and remove Uganda from her mother. Tr. 1063. CPM Delamothe decided that Uganda was in "imminent danger" because the apartment that Ms. Tillet was living in was being paid for by Mr. Gray (even though Ms. Tillett had told the caseworker that Mr. Gray had moved out on August 19), and because Ms. Tillett was unemployed and dependent on Mr. Gray for financial support (even though Ms. Tillett had told the caseworker that she was expecting support from her family in California). Tr. 1063-64; Ex. 77 at 7.

ACS proceeded to remove Uganda without a court order, and before offering Ms. Tillett any services. Tr. 1064-68, 1082. At trial, CPM Delamothe admitted that, given that Ms. Tillett was breast-feeding Uganda and had a ready supply of pampers and clothes for the child, the child was not in immediate danger due to Ms. Tillett's financial situation. Tr. 1064. The ACS case record prepared during the investigation states: "Infant was removed from his home because there was on-going domestic violence in the home." Ex. 77 at 14.

The following day ACS filed a neglect petition against Ms. Tillett as well as against Mr. Gray alleging that she "engage[d] in acts of domestic violence in the presence of the subject child." Ex. 161. Of course Uganda was not yet born at the time that Ms. Tillett reported being choked by Mr. Gray and during the trial CPM Delamothe conceded that, as an unborn baby, Uganda could not "witness" the violence. Tr. 1062.

ACS also charged Ms. Tillett with child neglect because she did not have a crib or "means for supporting or caring for" the baby. Ex. 161. CPM Delamothe admitted that Ms. Tillett's sleeping arrangement for her child, namely sleeping with Uganda in the same bed, was not neglectful per se. Tr. 1078. She could not explain why Ms. Tillett should not be permitted to sleep with Uganda when ACS does not consider it to be neglectful when other mothers do so. Tr. 1078-79.

On September 3, 1999, the Family Court remanded Uganda to ACS with privilege to parole. This meant that ACS could return Uganda to Ms. Tillett if the residence was inspected and found to be safe. Tr. 1087; Ex. 77 at 13.

Ms. Tillett had obtained a new residence in her own name. Ex. 77 at 13. The apartment was clean, and Ms. Tillett had acceded to ACS's demand that she purchase a bassinet for Uganda to sleep in. Ex. 77 at 13. ACS visited the new home and determined it to be "suitable for her and her son." Ex. 77 at 18. Ms. Tillett had obtained employment and now supported herself. Ex. 77 at 13; Tr. 1085. She also began regularly attending domestic violence classes, parenting skills classes, and one-on-one counseling. Ex. 77 at 13. Her counselor reported to ACS that she was "very receptive" to these services. Ex. 77 at 13.

Nevertheless, at CPM Delamothe's insistence, Uganda was not returned to Ms. Tillett until October 20, 1999, a month and a half later. CPM Delamothe's reason for refusing to parole Uganda to Ms. Tillett was she thought Ms. Tillett should undergo a psychological evaluation, Ex. 77 at 15, 16, because Ms. Tillett had been in two abusive relationships in her lifetime. Tr. 1086, 1088- 1089, 1090. CPM Delamothe testified that "I have learned that in domestic violence cases there exists sometimes a syndrome with the mothers, and they will replace one batterer for another." Tr. 1088. CPM Delamothe conceded that Ms. Tillett could not be expected to predict whether a person would be violent towards her before entering a relationship with the person. Tr. 1090. There had been no mention in the September 3 order of the Family Court that ACS should require a psychological evaluation of Ms. Tillett before returning Uganda to her.

Ms. Tillett objected to being required to undergo a psychological evaluation; she told ACS that her attorney had advised her that ACS could not condition the return of Uganda on her doing so. Ex. 77 at 14. Ms. Tillett then was asked to attend a conference with ACS caseworkers to discuss her family history and plans. Ms. Tillett brought her attorney with her, but CPM Delamothe refused to allow Ms. Tillett's attorney to attend the conference. Tr. 1093. CPM Delamothe testified that ACS policy was not to permit mothers to bring any legal representation to such conferences, Tr. 1097-98, even though everything the mother says is recorded and she might, among other things, incriminate herself. Tr. 1099.

When ACS finally determined that the infant could safely be returned to Ms. Tillett on October 20, two months after separation on August 24, Ms. Tillett had not undergone any psychological evaluation. CPM Delamothe admitted that a psychological evaluation "wasn't necessary" for the child to be returned. Tr. 1091.

ACS reported to the SCR that the report against Ms. Tillett was "indicated." Ex. 77 at 18. The report apparently has not been corrected.

Michele Garcia is the mother of three children, Benjamin, Giselle, and Jordan. She works as a dental assistant. In January of 1999, after a seven-year relationship, Ms. Garcia separated from Benjamin's father, Mr. Hunter. Ex. 89 at B100109. There were verbal disputes over visitation between the two, which Ms. Garcia reported to her local police precinct, but the father never assaulted Ms. Garcia. Ex. 89 at 100111-100112.

On July 6, 1999, Mr. Hunter was returning Benjamin to Ms. Garcia after a visit. At this time, Mr. Hunter was not living with Ms. Garcia. Tr. 1349. Ms. Garcia was visiting with a male friend when Mr. Hunter arrived. Mr. Hunter flew into a rage, attacking them both. His attack on Ms. Garcia's friend with a meat cleaver resulted in a wound that required twenty-four stitches. Ex. 89 at 100101. He kicked Ms. Garcia in the stomach so hard that Ms. Garcia suffered a pancreatic contusion, and required hospitalization for a week and a half. Ex. 89 at 100101. The record does not indicate where the children were during their mother's hospitalization. Although Mr. Hunter was charged with assault, he was not subsequently arrested. Ex. 89 at 100101. After she was discharged from the hospital, Ms. Garcia and the children moved in with her aunt while she sought a new apartment. Ex. 89 at 100109. On July 27, 1999, Ms. Garcia obtained an order of protection against Mr. Hunter. Tr. 1382-83.

On July 19, 1999, Ms. Garcia's counselor at Victim's Services Agency reported to the State Central Register that Mr. Hunter had mistreated the children by assaulting Ms. Garcia. Ex. 89 at 1001010. On July 26, an ACS representative first spoke with Ms. Garcia to schedule interviews with her and her children. Ex. 89 at 100102. Ms. Garcia told ACS that she did not feel comfortable having strangers interview the children, and was concerned that such interviews would only aggravate the children's trauma. Ex. 89 at 100102. Ms. Garcia agreed to meet with ACS on July 30; ACS had demanded that she meet earlier, but Ms. Garcia indicated that her work schedule and hospital visits would make any earlier visit impossible. Ex. 89 at 100103.

The caseworker consulted with ACS's legal counsel about the possibility of forcing Ms. Garcia to meet prior to July 30; counsel advised the caseworker that there were no legal grounds to force an earlier meeting. Ex. 100103. Legal counsel also advised the caseworker that, "Since [Ms. Garcia] already has an order of protection against [Mr. Hunter], and she has already left her previous home to stay with her Aunt, then she is at least safeguarding the safety of herself and her children." Ex. 89 at 100103. Counsel advised the caseworker to continue to engage Ms. Garcia and her family "in order to come to a compromise on an agreement." Ex. 89 at 100103.

Nevertheless, the ACS caseworker attempted to visit Ms. Garcia every day for the next three days in order to make an assessment of the children's safety. Ex. 89 at 100104. On July 29 Ms. Garcia contacted ACS; she was angry that ACS had been attempting to make unannounced visits to her home while she was away, and when there was already an agreed-upon interview date scheduled for July 30. Ex. 89 at 100104. Ms. Garcia again voiced serious concern that the interviews ACS intended to conduct with her children would be harmful to them, a concern that was not assuaged by the fact that ACS refused to tell Ms. Garcia what kind of questions would be asked during the interview. Ex. 89 at 100103, 100104. At trial, plaintiffs' expert Dr. Evan Stark testified that Ms. Garcia's concern that ACS might re-traumatize her children by conducting insensitive and uninformed interviews was supported by good clinical evidence. Tr. 1582.

On August 2, ACS's domestic violence specialist Cheryl Meyers interviewed all three children and the mother. Tr. 1234-45; Ex. 89 at 100104, 100108. The notes from the interview indicated that the children had no physical injuries, they had not been hurt during the attack on Ms. Garcia, their basic needs were being attended to, they were clean and neat, and they exhibited no symptoms of developmental disabilities. Ex. 89 at 100108. Ms. Garcia was cooperative with ACS during the interview, providing extensive information about her relationship with Mr. Hunter, prior disputes she had reported, the attack that took place, and her subsequent efforts to help the police locate Mr. Hunter and to otherwise protect herself and her children. Ex. 89 at 100103. Ms. Meyers concluded that Ms. Garcia was a strong woman who would do anything to protect her children, and that removal of her children was not necessary. Tr. 1234.

After the interview, ACS contacted the police to verify the information Ms. Garcia had given about the existence of prior disputes. The record of reports involving Ms. Garcia consisted of eight incidents, which are summarized below:

Of the seven reports made prior to the attack on Ms. Garcia that prompted ACS review, only two involved physical violence; both occurred in a two-day period seven years prior to Mr. Hunter's attack on Ms. Garcia, and both involved Mr. Reyes, a former partner, whose contact with Ms. Garcia after these incidents, from what can be determined in the case report, appears to have been limited to child visitation. None of the reports involving Mr. Hunter prior to July 6, 1999, suggested violence or a threat of violence against Ms. Garcia or any of the children.

Nevertheless, based on these reports, ACS determined that there was a "long history of domestic violence" in the household, and that the case should be indicated against Ms. Garcia because, "although she took the necessary precautions of protecting her children by filing complaints at the local precincts," she had let the batterers back into her life and did not "see herself as a victim of domestic violence." Ex. 89 at 100113.

This somewhat abrupt decision by ACS to target Ms. Garcia as a subject of the investigation, charge her with neglect, and remove her children, may be illuminated by the notes in the case record that, two days before the remand was requested, CPM Lowell met with the case supervisor and caseworker, and ordered the caseworker to file the case and ask for a remand "based on the fact that [Ms. Garcia] has blatantly refused to cooperate with ACS." Ex. 89 at 100117. A similar refrain emerged from the testimony of Giselle Reyes, one of Ms. Garcia's children who was removed. When she asked the caseworker why she and her siblings were being taken away from their mother, the caseworker replied "[o]ver a phone call, if your mom would have called, you would not have been removed." Tr. 1341.

At trial, CPM Lowell testified that she decided to seek the removal of the children because she thought they were in imminent danger; the reason that she believed the children were in "imminent danger" was that the children were not receiving counseling and "ACS had no idea what was going on." Tr. 1353-55. CPM Lowell did not consult with Ms. Meyers, the domestic violence specialist, who, it will be recalled, found no reason for separation. Tr. 1356-57.

On August 27, 1999, more than a month and a half after the precipitating incident and long after the children and their mother had settled down peacefully, the Family Court granted ACS's petition to remove the children. The children were placed with Mr. Hunter's aunt.

Although the source ofthe "imminent danger" that CPM Lowell testified about was the lack of counseling the children received while in Ms. Garcia's custody, the children apparently never received counseling while in foster care under the control of ACS. Tr. 1343. CPM Lowell could not recall ACS making any efforts to provide them with such services. Tr. 1355-57. Following the removal of her children by ACS, the ACS case record indicates that "[Ms. Garcia] is very receptive to services and is willing to do whatever it takes for her to get her children back." Ex. 89 at 100118. The children were, of course, hostages to compliance.

Michelle Norris is a twenty-four year old mother of one. Her son, Justin, is two years old. She is employed at JFK airport in Queens. Tr. 1181. Her first encounter with ACS occurred in March, 2000, when a caseworker from ACS visited the home to investigate a report of possible domestic violence and drug use in the household. Tr. 1185. At that time, Ms. Norris was in a relationship and living with Justin's father, Angel Figueroa. Ms. Norris asked the caseworker if she was there to take Justin away, and the caseworker responded that "we only take away kids if there's domestic violence or if you're on drugs." Tr. 1185. The caseworker examined Justin, assessed the living quarters, and told Ms. Norris that everything looked fine and that she should have nothing to worry about. Tr. 1185.

Later than month, Ms. Norris decided to break the relationship and depart from the apartment of Mr. Figueroa. Tr. 1186. Mr. Figueroa did not approve. As Ms. Norris was collecting her things, he attacked her. She testified that "[Mr. Figueroa] dragged me by my hair, threw me into a wall, hit me in the face." Tr. 1186. Ms. Norris could not get to a phone, but the landlord was able to summon the police. Ms. Norris showed the police her injuries and asked them to arrest her batterer. Tr. 1187. She filed a police report against Mr. Figueroa, and was granted an order of protection. Tr. 1188-89.

The apartment in which she had lived with Mr. Figueroa was rented in her, not his, name. Nevertheless, after the attack, Ms. Norris and Justin temporarily moved in with a friend to ensure their safety. Tr. 1189. Many of her belongings were still at her apartment, and on April 5 Ms. Norris returned to collect them. Tr. 1190, Ex.222. Mr. Figueroa was not present when Ms. Norris arrived, and Ms. Norris did not believe he would be there. Tr. 1190; 1215. Mr. Figueroa, however, returned to the apartment while Ms. Norris was still there, and attacked her again, breaking her phone and hitting her in the face. Tr. 1190.

The police were called, and when they appeared Mr. Figueroa took the baby to the bathroom and locked the door. Tr. 1190. The police informed Ms. Norris that, because of the order of protection, either she or Mr. Figueroa would have to leave the apartment or both would be put under arrest. Tr. 1190. Ms. Norris explained to the police that she was trying to leave, but that she wanted her son back first. Tr. 1190. Mr. Figueroa refused to leave the bathroom, and the police escorted Ms. Norris out of the apartment without helping her take her son back from Mr. Figueroa. Tr. 1190-91.

The next day, Mr. Figueroa left Justin with a baby-sitter, and Ms. Norris returned to take the child. Tr. 1192. Since Justin was running a fever, Ms. Norris immediately took him to a hospital emergency room. Tr. 1192.

On the way to the hospital, Ms. Norris received a call from an ACS caseworker. The caseworker told Ms. Norris that she had neglected Justin by "engaging in domestic violence" and "leaving him with an abusive man." Tr. 1193. Ms. Norris told the caseworker that she had been forced to leave her son by the police; the caseworker answered that was "irrelevant." Tr. 1193. The caseworker informed Ms. Norris that she had twenty-four hours to surrender Justin to ACS custody. Tr. 1192-93. When Ms. Norris told the caseworker that Justin was in the hospital with pneumonia, the caseworker responded that "as far as we're concerned, your son belongs to the state right now." Tr. 1193. Ms. Norris protested that she had done nothing wrong, and that a judge would surely return custody of the child to her; the caseworker's reply was that "the judge is always on ACS's side." Tr. 1194.

As she had been instructed to do, Ms. Norris brought Justin to the ACS office the next day. Ms. Norris testified, "it was the worst part of my life. I mean, I didn't know what was going to happen from there. I didn't know where he was going to go. I had no rights, ... [ACS] told me, he wasn't my son anymore." Tr. 1194.

That day, ACS filed a neglect petition against both parents. The petition alleged that both "engaged in domestic violence." Ex.222. The only allegation not directly related to domestic abuse was an allegation "based on information and belief" that both parents used drugs. There is nothing in the record indicating any evidence supported the report of drugs. ACS did not test Ms. Norris for drugs before filing the petition. Ms. Norris on her own initiative sought drug testing to exonerate herself. On April 26, almost three weeks after the petition was filed, ACS filed an investigation summary finding that the allegations of drug use were unfounded, and noting the only reason that Justin was removed was because of "ongoing domestic violence in the home." Tr. 216. Even though ACS never determined that there was a basis for the allegation of drug use, the Family Court neglect petition against Ms. Norris was never amended to eliminate this unfounded charge. Tr. 1197.

The Family Court adjourned the case until June, granting custody of the child to ACS. Tr. 1197; Ex. 222. Ms. Norris was not permitted to speak before the remand to ACS was granted. Tr. 1197. She was assigned 18-B counsel at the hearing, but counsel did not speak on her behalf that day. Nor did the assigned counsel inform Ms. Norris that she could demand a "1028 hearing" for the return of her son. Tr. 1197-98. When next Ms. Norris appeared before the Family Court, a different 18-B attorney represented her. Tr. 1198. Eventually Ms. Norris retained her own counsel, because she "[didn't] believe that the [18-B] attorney was trying to help me in any way. He wasn't returning my phone calls." Tr. 1198.

The Family Court determined that, in order to obtain the parole of her son, Ms. Norris was required to attend individual counseling for domestic violence, complete a parenting skills class, and undergo drug testing. Tr. 1198. Beyond these court-imposed requirements, ACS unilaterally required Ms. Norris to maintain a job and a two-bedroom apartment. Tr. 1199. While ACS assigned an agency to assist Ms. Norris in reaching the goals, the agency did not give Ms. Norris any assistance. Tr. 1200-02.

Fortunately, Ms. Norris's private attorney was able to help her locate and attend the requisite parenting classes and domestic violence counseling. Tr. 1203-04. She was also able to locate a two-bedroom rental apartment, although it was very difficult to afford because Ms. Norris was also required to pay for the classes she was required to attend, and had to support her child with virtually no assistance from Mr. Figueroa. Tr. 1204. Neither ACS or the agency assigned by ACS to assist Ms. Norris helped her pay for the apartment or for the classes. Tr. 1204.

On September 19, the day before Ms. Norris was scheduled to appear in Family Court, the ACS caseworker visited her. The caseworker told Ms. Norris that the new apartment looked good and that if she "went into court and made an admission to domestic violence" the next day, she would probably get her baby back right away; if she didn't make an admission, the return would take weeks. Tr. 1206. Ms. Norris refused to make the untrue admission. Tr. 1207.

On September 20, the Family Court ordered that Justin be returned to Ms. Norris. Days later, nearly five and a half-months after he had been removed, Justin was returned to Ms. Norris. Tr. 1208.

Predictably, the forced and unnecessary removal adversely affected Justin's behavior. Ms. Norris testified that now:

As of the time of trial, the neglect petition against Ms. Norris had yet to be dismissed. Tr. 1210.

Crystal Rhodes is the mother of two children, Alfonso, age five, and Alazia, age three. Ms. Rhodes was battered by the children's father, Alfonso Washington, and had obtained orders of protection against him in March of 1999 and October of 2000. Ex. 102. On October 30, 2000, ACS received a referral from the State Central Register concerning Ms. Rhodes and Mr. Washington. Tr. 216. The referral indicated that Ms. Rhodes had not appeared at a court hearing scheduled on October 30 to extend an order of protection she had received earlier that month. Tr. 208.

On the evening of October 31, an ACS caseworker visited Ms. Rhode's apartment. The caseworker rang the buzzer for the apartment, and was answered by a male voice. When the caseworker identified herself and asked to speak with Ms. Rhodes, there was no response. The caseworker got into the building, went to the apartment, and knocked on the door. There was no answer. Ex. 171A at 8. The caseworker then proceeded to the home of the maternal grandmother, who said that Ms. Rhodes and the children were out "trick or treating." Ex. 171B at 35.

The next day, November 1, CPM Chamorro met with the caseworker and supervisor assigned to the Rhodes case. CPM Chamorro directed the caseworker to remove the children. Tr. 217. CPM Chamorro based the decision to remove the children on the grounds that Ms. Rhodes had not appeared in court on October 30 to further pursue the order of protection and that a male voice had answered at Ms. Rhodes apartment. Tr. 207. CPM Chamorro conceded that the caseworker did not know whose voice it was that she heard. Tr. 207. CPM Chamorro also considered the children to be in imminent danger because the father had assaulted and threatened to kill Ms. Rhodes in October 2000, and may have had access to a gun because in 1998 he had been arrested for gun possession. Tr. 204-05.

A removal decision was made before anyone from ACS had talked with Ms. Rhodes. Tr. 204. There was no court order. Ex. 171B at 29.

When the ACS caseworker and police met Ms. Rhodes to carry out the removal, Ms. Rhodes explained to the caseworker that she had not been at home the previous evening; she had been staying with friends because she was concerned that Mr. Washington might have access to the apartment; she told the caseworker that the police had not taken his apartment keys when they served him with the order of protection. Tr. 209-10. She further explained that the reason she had not attended the court hearing on October 30 was that the papers she needed for court were at the apartment and she did not want to return because she was afraid Mr. Washington might be there. Tr. 210. Although CPM Chamorro testified that there were less severe alternatives to removal that might have satisfied ACS's concerns, such as changing the locks to Ms. Rhode's apartment, none were offered. Tr. 212.

On November 2, 2000, ACS filed a neglect petition against Ms. Rhodes and Mr. Washington. It alleged that both had "engaged in an ongoing pattern of domestic violence ...." (Ex. 102).

On November 9, after a Section 1028 hearing, the Family Court ordered the return of the children to the mother and ordered ACS to assist her in entering a domestic violence shelter. Ex. 171B at 43-49. The court found that Ms. Rhodes had "made diligent and valiant efforts" to protect her children from any harm arising from the domestic violence she had suffered. Ex. 171B at 43. Nonetheless, as of trial ACS was still prosecuting Ms. Rhodes for neglect on the grounds that she "engages in domestic violence." Tr. 223-24; Ex. 251.

Shiqipe Berisha is the mother of a two year old child, Ismael. On January 1, 2001, Ismael's father grabbed the mother by her hair and dragged her across the apartment while she held her son. Ex. 88. The police arrested Ms. Berisha along with her batterer. Ex. 229.

Shortly after the arrest, the District Attorney declined to prosecute Ms. Berisha, and she was released. Ex. 229. Nevertheless, on January 2, 2001, ACS took Ismael from her into custody without a court order. Tr. 1358; Ex. 88.

On January 4, 2001, at the direction of CPM Lowell, Tr. 1358, ACS filed a petition alleging that the parents had both been arrested for "endangering the welfare of their child." Ex. 88. ACS also alleged, incorrectly, that Ms. Berisha had been charged with assault in the third degree. Tr. 1362; Ex. 88; Ex. 229. Even after the District Attorney confirmed by letter to ACS that no charges had been filed against Ms. Berisha, ACS did not amend the petition against Ms. Berisha to correct the misstatement. Tr. 1363. CPM Lowell never consulted with the available ACS domestic violence specialist on the Berisha matter. Tr. 1358.

The only other allegation against Ms. Berisha contained in the neglect petition was that she misused drugs. The only basis for this allegation, CPM Lowell testified, was that Ms. Berisha had taken Valium without a prescription on one occasion six months prior to the filing of the petition. Tr. 1360-61. CPM Lowell admitted that, taken alone, that behavior would not constitute neglect. Tr. 1361.

After the petition was filed, the Family Court held a short hearing approving the remand of the child to ACS. Ms. Berisha did not have counsel.

At a Family Court hearing on January 16, two weeks after the child had been removed, Ms. Berisha still had not been assigned an attorney. After the hearing had gone on for some time, with ACS representatives and the court discussing the whereabouts of the batterer and the appropriate foster care location for the children, Ms. Berisha spoke for the first time:

There was no further discussion of Ms. Berisha's request at that hearing, and the matter was continued until January 21, about a month after the court's remand to ACS. Id. at 10-12.

Eventually, Ismael was returned to Ms. Berisha. Tr. 1363-64. The record does not indicate when this occurred. As of trial, ACS was still prosecuting Ms. Berisha in the Family Court for child neglect. Tr. 1364.

Jane Doe is one of the mothers whose cases were reviewed by the State Office of Children and Family Services for its "ASFA Domestic Violence Study / New York City Results." Ex. J; Ex. 180. Her case record was also assessed by plaintiffs' expert Laura Fernandez in her supplemental report. Ex. 137a.

At the relevant times Jane Doe was the mother of one child born June 1, 1993. Ex. 180. On September 10, 1999, while he was intoxicated, her husband tried to pick up the child at school. Id. at S01647. The school guidance counselor reported the incident to the State Central Register. Id. at S01676. The report also alleged that the father had smashed dishes in front of Ms. Doe. Id. at S01646.

When ACS investigated, it found that Ms. Doe was a responsible and involved caretaker, id. at S01668-69, but that she was a victim of domestic violence by Mr. Doe. Id. at S01647, S01676, S01689. There was no evidence that she had ever harmed the child. Nevertheless, the Case Supervisor's 48-hour review findings focused almost entirely on the responsibilities of Ms. Doe:

Id. No mention was made of offering or requiring domestic violence counseling for the father.

Despite Mr. Doe's identification as a perpetrator of domestic violence, ACS referred both the Does for family counseling. Id. at S01684. While offering services to keep the family together, ACS demanded exactly the opposite from Ms. Doe: she had to "take an active role in protecting her ch[ild]" by going to a shelter or calling police, otherwise "we will deem this neglect on her part." Id. at S01689. ACS clung to its contradictory approach when Ms. Doe expressed a fear of recurring domestic violence, id. at S10670, and even after she telephoned ACS on November 9, 1999, to tell the caseworker that Mr. Doe had begun drinking again. Id. at S01671. ACS did nothing in response to Ms. Doe's telephone call. On November 17, 1999, ACS closed the case, because it was determined that the "[mother] has acted appropriately. She appears to be able to protect the [child]." Id. at S01691. No mention was made of whether the father had utilized any services or had shown any ability to control his own behavior.

On November 24, 1999, the school reported that the child said that Mr. Doe had threatened to kill Ms. Doe the day before. Id. at S01651. The child told a guidance counselor that her father's drunken outbursts against her mother scared her. There was no indication in the report that the father had physically harmed, threatened, or verbally assaulted the child. There was no evidence that Ms. Doe had harmed the child.

Upon the direction of CPM Williams, ACS removed Ms. Doe's child without a court order. Id. at S01651. ACS did not interview Ms. Doe or explore other options before removing the child. Id. at S01651. On November 26, 1999, after her child had been in the care of strangers for two days, Ms. Doe agreed to sign a "Voluntary Placement Agreement" under the condition that her child could live with an out-of-state relative. Contrary to the condition, the child remained in foster care with strangers until December 2, 1999.Id. at S01651-52.

On December 29, 1999, Ms. Doe called ACS to say that she wanted her child back. Id. at Z6060. Despite Ms. Doe's withdrawal of her "consent" to placement, ACS kept the child in the relative's custody and did not file a Family Court petition until March 21, 2000. Id. at Z5860-63.

ACS charged Ms. Doe and her husband with a "history of engaging in domestic violence in front of the child" and with refusing to cooperate with referrals. Id. at Z5863. It is unclear what "referrals" could have meant, since the child had been removed before ACS spoke with either parent. Id. at S01651. In the "Services" section of the case record, where ACS is supposed to fully describe what services are being offered to the parents and how they responded, the record indicates only that the family had been referred for "Counseling and Detox. for the father, family counseling, and parenting skills." Id. at 35. No mention was made of domestic violence counseling, or of any services to help the mother. ACS did not describe anywhere in its case record any failure by Ms. Doe to participate in services. Id. at S01661. Its sole complaint with Ms. Doe was that she had failed to press charges against her husband--a fact determined only after the removal had occurred. Id. at S01652-53.

On March 21, 2000, the same day the petition was filed, the Family Court heard the petition and paroled the child to the maternal uncle, with whom the child had been staying since December 2, 1999. This did not constitute judicial approval of ACS's unauthorized removal, as there was no fact-finding and the remand simply maintained the status quo. Id. at Z6102. Ms. Doe was permitted only weekly, supervised visitation with her child at the ACS field office. Id. at Z5879. The hearing was then adjourned until June 8, 2000. Id. at Z5857. At that hearing, the court ordered ACS to return the child to Ms. Doe. Id. at Z5858. The child was not returned to Ms. Doe until June, 2000, more than half a year after forcible removal without a court order. Id. at Z5874, Z5858.

In Family Court, the case was disposed of by issuance of a one-year adjournment in contemplation of dismissal as to both parents, with ACS's supervision to expire on August 2, 2001. Id. at Z5941. One condition of the adjournment was that the parents would not "engage in any domestic violence" in the house. Id. at Z5857. Mr. Doe, who had threatened to kill Ms. Doe with a knife among other acts of violence, received the same disposition as Ms. Doe, who was not alleged to have committed any acts of child neglect other than being victimized by her husband. Yet ACS informed the SCR that the neglect charge against Ms. Doe was "indicated." Id. at S01650, S01653. The record does not reflect a change in that adverse characterization of her conduct.

Plaintiffs' expert Laura M. Fernandez prepared a lengthy opinion based on her review of the ACS case record. Ex. 137-a. She found many of the comments by ACS caseworkers and supervisors to be "dramatic example[s] of bad practice," such as one supervisor's comment that "This is a domestic violence case.... [Ms. Doe] needs to get her husband help." Ex. 137-a at 1. Ms. Fernandez concluded that "the sole reason Jane Doe's child was removed [from the mother] was because the child witnessed her father threaten her mother." Ex. 137-a.

Representatives of subclass B, J.A. and G.A., are four and five years old, respectively. They both live with their mother, Xiomara C ., and father, Justin C. In March 2000, ACS was involved with the family because of reports of domestic violence in the household. ACS referred both parents for domestic violence counseling and preventative services, but neither participated. Ex. B- 18 at 5.

On March 10, 2000, Justin violently attacked Xiomara. He punched her head, shoulders, and both eyes. He "took two knives, put them against her eyes and told her that if she moved, he would kill her." Id. at 4. Then he pushed her to the ground. When she tried to get up, he pushed her down again. He dragged her into the bathroom and forced her into a bathtub full of ice cold water until her skin was numb. Then he used the shower nozzle to hose her with scalding water. Id. at 4.

After he was finished battering the mother, he kicked her out of the bathroom. He then locked himself and his son in the bathroom. The mother called the police, and when the police arrived they had to break down the bathroom door. The son had suffered bruises and cuts to his face while he had been in locked in the bathroom with the father. Id. at 4-5.

Early the next day, ACS removed both children from the house without a court order. ACS proceeded to interview the mother, who told ACS that she had been subject to verbal and physical abuse by the father for the past six years.

Based on these facts alone, ACS filed an Article 10 petition in Family Court accusing both Xiomara and her abusive partner with neglect. Id. The petition was filed on March 13, two days after the removal. It leveled the exact same allegations against both parents. The petition had no indication that the mother had ever done anything except suffer at the hands of her partner. No allegations were made that Xiomara committed or threatened to commit any violence against Justin or her son.

In many other cases petitions in Family Court allege neglect and domestic violence against the mother even when she has herself committed no violence and is separated from the batterer, and is caring for her child with no evidence of harm to the child. See, e .g., Olga Urena, Ex. 244; Jessica Valentin, Exs. 107a and 119a; "Ms. E", Ex. 180 (case from "ASFA Domestic Violence Study / New York City Results"). See also Ex. 119 at 6 (admission by a lawyer for ACS that she had "done cases like this for many years" on behalf of ACS. The lawyer was referring to a case in which a battered woman was accused of neglect for "engaging in domestic violence") (emphasis added); Subclass A post-trial memorandum of law, p. 100. While the court has not relied upon any of the cases described in People United for Children, Inc. v. City of New York, 108 F.Supp.2d 275 (S.D.N.Y.2000), the pattern revealed there of ACS blaming the mother is not dissimilar from the one demonstrated in this court.

Although some suggest that society is experiencing more domestic violence today than ever before, domestic violence is not new; it has been repeatedly described in documents going as far back as the Roman Empire. Ex. 163 at 839. See also, e.g., UNICEF, Domestic Violence Against Women and Girls (2000), http://www.unicef-icdc.org/publications/pdf/digest6e.pdf ("[W]hen the violation takes place within the home, as is very often the case, the abuse is effectively condoned by the tacit silence and the passivity displayed by the state and the law-enforcing machinery."). Rather, the high levels of domestic violence today observed by the law appear to be a product of increased societal concern. Ex. 163 at 839.

In the mid-1970s, battered women in the United States increasingly began to come forward with their stories and to seek protection from the men who were assaulting them. Ex. 165 at 73. With the aid of grassroots women's groups, hundreds of small, community-based shelters and support groups for abused women emerged throughout the 1970s and 1980s. Ex. 165 at 73. It is now recognized that domestic violence occurs at all class levels, across all ethnic, racial, and religious lines, in all groups, among all educational backgrounds and sexual orientations, and in both rural and urban areas. See Margaret Martin, Battered Women, in The Violent Family: Victimization of Women, Children, and Elders 70 (Nancy Hutchings ed., 1988).

In 1984, plaintiffs' expert Dr. Evan Stark and others conducted studies at Yale New Haven Hospital to assess the medical dimensions and consequences of domestic violence on women. They concluded: First, domestic violence was the leading cause for which women sought medical attention, more common than auto accidents, mugging, and rapes combined. Tr. 1540. Second, battered women often suffer from behavioral and psychological problems that differentiate them quite sharply from non-battered women. Third, the behavior of social workers and health service providers was a direct, albeit inadvertent, contributor to women's sense of being trapped in abusive relationships. Tr. 1540. The result of this study and subsequent confirming investigations was a widespread and dramatic change in the national medical community's awareness of, and responses to, domestic violence.

Cultural differences can influence the behavior and beliefs of abusers and battered women. In some cultures, calling the police is considered a betrayal of community values. Tr. 1642. Some condone a level of child abuse or spouse abuse. Tr. 1642-43. While these cultural differences do not lessen our society's resolve to protect victimized women and children, an understanding of them is necessary to develop appropriate interventions. Tr. 1641-43.

When the issue of domestic violence rose to national attention many assumed that separation from the abusive partner was the only safe option for the vast majority of women. Tr. 1647. As the problem was more fully understood, experts realized that there are situations in which the victim wants the violence to stop, but may reasonably desire to accomplish this without ending the relationship. Tr. 1647. And even where reconciliation is not possible, experts realized that the process of extrication from a violent relationship often takes time, through a series of separations and seeming reconciliations. Tr. 1646-47.

Even if a woman wishes to free herself from an abusive relationship immediately, that is not always a viable option. The most dangerous time for a woman and a child appears to be immediately after she leaves the batterer; his threats will usually make her aware of this jeopardy. Ex. 106 at 16. The severe shortage of appropriate domestic violence shelter space in New York and elsewhere forces many women who decide to flee abusive relationships into homeless shelters; many women who return to abusive relationships do so because they are unable to find permanent housing arrangements elsewhere. Ex. 106 at 17. The criminal justice system often offers only limited protection to battered women. Ex. 106 at 19.

In 1994, the Federal Government adopted the Violence Against Women Act (VAWA) which, among other things, greatly increased funding to battered women's service programs, specifically making grant awards to states, tribes, and territories to expand shelter and support services to victims and their children. See Violence Against Women Act, Pub.L. 103-322, 108 Stat. 1796, Title IV, §§ 40121, 40211, 40241 (1994).

The New York State Legislature made arrest mandatory in 1994 in cases where police have probable cause to believe that a crime of domestic abuse had occurred. N.Y.Crim. Proc. Law § 140.10(4) (Consol.2001). The law requires police to determine who was the primary aggressor in cases where there were cross-complaints. Id. In 1996, the New YorkState Legislature amended the Domestic Relations Law to provide that, where domestic violence is proven, it must be considered by courts in making custody and visitation orders. N.Y. Dom. Rel. Law § 240(1)(a) (Consol.2001). Many other states have passed similar laws.

Historically, child maltreatment was not considered a problem warranting public attention. See Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hastings L.J. 1, 41 (2001) (early in the United States' history severe corporal punishment was routine and parents were encouraged to use their discretion in promoting their children's obedience). The first widespread official attempts to protect children from parental abuse began less than 200 years ago. Dependent and Neglected Children: White House Conference On Child Health and Protection 381 (Robert H. Bremner, ed., 1974). In the United States, much of the pioneering in the field of child protection has occurred in New York.

Private charitable organizations were responsible for early attempts to protect children. In 1824, the first "house of refuge" was established in New York to serve juvenile delinquents and neglected children. Weithorn, supra, at 46. This "institutional" approach grew out of and closely resembled the English and colonial orphanage system. Other cities soon copied New York's model. Id. Increasing institutionalization of children attracted criticism, and alternative methods of protection were proposed.

A New York City minister, Charles Loring Brace, founded the Children's Aid Society in 1853. It used "orphan trains" to send over 150,000 poor and homeless children from the streets of New York to live with families in the Midwest. See id.; The Orphan Train Movement, http:// www.childrensaidsociety.org/about/train/ (last visited March 11, 2002). These charitable approaches were better suited to protecting abandoned children than abused children since they lacked legal power to remove children from abusive parents who wished to retain custody.

Ironically, the first attempts to utilize the legal system to protect children relied on laws prohibiting cruelty to animals. In 1874, Mary Connolly was convicted of assault and battery against her ten-year-old daughter, Mary Ellen Wilson, whom she assaulted with scissors and repeatedly beat with a rawhide whip. Weithorn, supra, at 48. Mary Ellen was removed from her abusive mother's custody under laws enacted for the protection of animals. Bremner, supra, at 382. Shortly thereafter the New York Legislature chartered the New York Society for the Prevention of Cruelty to Children ("SPCC"). This organization was to assist the police force and the courts in enforcing newly enacted legislation that would protect abused and neglected children. It was apparently the first organization in the world specifically devoted to preventing child abuse. Other states and countries followed New York's lead.

The SPCC started by reacting to situations where children were living under brutal conditions. Id. at 383. In 1910 the Massachusetts SPCC began to pursue a proactive program of discovering and eliminating the causes of child abuse and neglect with the goal of maintaining family integrity. Id. at 384. Under this new vision, prosecution and removal would be a last resort to be considered only in cases where education failed and where the welfare of the child required removal. Id.

Government assistance was vital to the success of this preventative approach. In 1935 the Social Security Act established the Aid to Dependent Children program. Weithorn, supra. at 54. By providing financial assistance to impoverished families, the Act was designed to ensure that dependent children would not need to be removed from the home. Id. The Act reflected a growing acknowledgment by child protective agencies that children were better off being raised by their own families than by institutions, and that government intervention should seek first to strengthen the parent-child relationship. Id.

Government involvement in protecting children increased in other ways as well. In the mid-twentieth century, government child welfare agencies assumed the functions of the SPCC. Id. at 55. These government institutions were the precursors of modern public agencies such as the ACS.

By 1962, national awareness of child abuse had increased dramatically with the revelation of the "battered child syndrome." Dr. C. Henry Kempe reported hundreds of cases where injured children had been brought to hospitals with the parents' explanations inconsistent with clinical diagnoses. C. Henry Kemp, et al., The Battered Child Syndrome, 181 J. Am. Med. Ass'n 17 (1962). The study provided guidance to physicians on how to recognize abused children, encouraging physicians to intervene. Id. Reports of child abuse and neglect increased rapidly as awareness of the problem spread. See Julia Hamilton, Child Abuse and Violence in the Family, in The Violent Family: Victimization of Women, Children, and Elders 90 (Nancy Hutchings ed., 1988).

In response to Dr. Kempe's study states began passing statutes requiring physicians and other professionals working with children to report suspected child abuse. Currently the District of Columbia and every state but Maryland and Michigan has criminal statutes prohibiting abusiveness that could be characterized as child neglect. Each state and the District of Columbia has criminal statutes prohibiting child abuse and civil statutes that provides the state with the authority to remove a child from a parent's care if the child is neglected, abused or otherwise maltreated. See National Clearing House on Child Abuse and Neglect Information, Child Abuse and Neglect State Statutes Elements: Child Witnesses to Domestic Violence--State Statutes, http:// www.calib.com/nccanch/statutes/index.cfm (last updated Nov. 19, 2001).

As already noted, Congress enacted the Child Abuse Prevention and Treatment Act of 1974 (CAPTA). It provided funding for state efforts to protect children from abuse and neglect. Weithorn, supra, at 57.

While the legal system has gradually provided more protection for children from parental abuse, it has also had to intervene from time to time to protect children from abuse at the hands of protective agencies. In 1972, 90 percent of the foster care system in New York City was controlled by private agencies. Nina Bernstein, The Lost Children of Wilder 4 (2001). New York then relied heavily upon religiously-affiliated charities. The most developed of these institutions were Catholic and Jewish, which generally preferentially admitted children of the same religion. An increasing number of Protestant African- American children were left without adequate foster care. Id. In 1973 a class action lawsuit was filed in the Southern District of New York against City, State, and private officials challenging this sectarian system, contending that it violated the First, Eighth, and Fourteenth Amendments of the United States Constitution. See Wilder v. Sugarman 385 F.Supp. 1013 (S.D.N.Y.1974). A consent decree establishing a secular "first-come, first- served" rule for admittance was mandated for private institutions supported at least in part with public monies. Wilder v. Bernstein, 546 F.Supp. 1292, 1354 (S.D.N.Y.1986); see also Bernstein, supra (detailing the history of the Wilder litigation).

Implementation of the Wilder decree proved difficult. City officials complained that the plan was obsolete due to changes in demographics and increases in poverty, drugs and AIDS. These new challenges caused the total number of children in the system to triple. Id. at 372. Despite the consent decree, a 1989 study revealed that ethnicity continued to be a criterion utilized in placing children at the Child Welfare Administration's Office of Direct Care Services as well as by private agencies. Id. at 373. By 1990, it was widely acknowledged that the child protective system in New York City was failing. Weithorn, supra, at 58.

In 1995 another class action suit was filed on behalf of a class represented by "Marisol," a child who had almost starved to death in a closet while the City allegedly ignored evidence of her maltreatment. See Marisol v. Giuliani, 929 F.Supp. 662 (S.D.N.Y.1996). In response to this and other embarrassing failures, such as the death of Elisa Izquierdo, New York City created the ACS. The Marisol case was settled in 1999 with the establishment of an advisory panel of child welfare experts that would oversee ACS' reform efforts. Marisol ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.1999), aff'd218 F.3d 132 (2d Cir.2000).

At trial substantial expert evidence was presented on the subject of how children are affected by the presence of domestic violence in the home. Two general topics were addressed in detail: the effect that witnessing domestic violence has on children, and the connection between domestic violence in the household and direct abuse against the children.

The consensus of the experts was that the children can be--but are not necessarily--negatively affected by witnessing domestic violence. Exs. 137, 139, 141(b), 143, 149, 151, 240, Z, BB. The experts agreed that children who witness domestic violence exhibit a broad range of responses. City defendants' expert Linda Spears testified that "the impact [of domestic violence on children] ranges from none to serious." Tr.1998. Dr. Jeffrey Edleson cited three recent studies which concluded that at least half of the child participants who witnessed domestic violence had "few or no problems evident" when compared with children who were not experiencing domestic violence, and that there was "a great deal of variability in children's experiences and the impact of those experiences." Ex. 170 at 3-4. Subclass B's expert Betsy McAlister Groves concluded that the existing body of research, "while documenting the seriousness of domestic violence for many children, also make [s] the point that children are affected in a wide range of ways." Tr. 2758.

The experts cited a number of factors which may influence how an individual child responds to being exposed to domestic violence. Dr. Edleson reported that these elements include the level of violence in families, the degree of the child's exposure to the violence, the child's exposure to other stressors, and the child's individual coping skills. Ex. 170 at 3-4. Ms. Groves testified that the degree to which a child may be affected by domestic violence is related to the child's age (younger children are more vulnerable), the frequency and content of what the child saw or heard, the child's proximity to the event, the victim's relationship to the child, and the presence of a parent or a caregiver to mediate the intensity of the event. Tr. 2735-38, 2746, 2755.

The experts also agreed that how children manifest the effects of exposure to domestic violence varies widely. Ms. Groves explained that short-term effects include post-traumatic stress disorder, sleep disturbances, separation anxiety, more aggressive behavior, passivity or withdrawal, greater distractibility, concentration problems, hypervigilance, and desensitization to other violent events. Tr. 2739-40, 2751-54. Dr. David Pelcovitz, a child and adolescent psychologist, offered similar testimony:

[A] certain percentage of children exposed to domestic violence suffer from a variety of behavior and emotional difficulties. On the emotional level they tend to be at increased risk for depression and anxiety and disruptive behavior disorders, such as conduct problems, and other issues with ... compliance with authority. On the behavioral level also there is a higher level of aggression. On the academic level there is a higher rate of academic difficulties ... [although] [s]ome children ... actually appear to be resilient and show no obvious kinds of outcomes.

There was some disagreement among the experts about the likelihood and seriousness of the long-term effects experienced by children who witness domestic violence. Ms. Groves testified that the long-term effects can include a propensity to use violence in future relationships and to hold a pessimistic view of the world. Tr. 2742-43. Dr. Evan Stark, however, offered a lengthy and well-substantiated opinion that children rarely experience long-term effects from witnessing domestic violence. He testified that "one of the most dramatic experiences that advocates in the domestic violence movement have had is watching problems that seem to be quite profound and clinically significant abate after a relatively short period of safety ... and security was provided." Tr. 1556. He cited studies which demonstrated that, among children exposed to the most severe domestic violence, well over 80 percent, and sometimes over 90 percent, tested psychologically normal, were self-confident, had positive images of themselves, and were emotionally well off. Furthermore, while children exposed to the most severe forms of domestic violence are more likely to become violent adults or delinquents, 95 to 97 percent of the children in these situations do not become delinquent, do not develop alcohol or drug problems, and about 90 percent do not become violent adults. Tr. 1557-59.

On the question of the relationship between the presence of domestic violence in a household and direct maltreatment of children, the experts generally agreed that there is some correlation between the two. One report cited by Dr. Edleson reviewed thirty different studies on the link between adult domestic violence and physical child abuse, and determined that there was a 40% median co-occurrence in the samples studied. Ex. 170 at 7.

Dr. Stark's research at Yale New Haven Hospital revealed that "in the vast majority of cases" where a mother was battered and a child was maltreated in a home, the man who battered the mother was also the source of child abuse or neglect. Tr. 1546. In other words, the "man hits wife, wife hits child" scenario is rare; abuse tends to flow from a single source. Tr. 1546-47.

In a 1999 study by Jeffrey L. Edleson surveying existing research on how children respond to witnessing domestic violence, he addressed how this evidence should influence decisions about child maltreatment. In his conclusion Edleson warned against automatically defining a child's witnessing battery of the mother as maltreatment by her; he observed that there is