Judge Weinstein issues decision in Nicholson v. Williams

On December 21, 2001, Judge Jack B. Weinstein, Senior District Judge, United States District Court for the Eastern District of New York, ordered the City of New York to stop taking children away from battered mothers. He issued a revised order on January 3, 2002. Judge Weinstein promised that he would write a decision explaining how he had reached his conclusions and why he had issued the order. The final decision, dated March 18, 2002, has now arrived. It is summarized below:

Findings regarding the Administration for Children's Services

"The evidence before this court 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. . . . "The resulting denial of constitutional rights of both mothers and children cannot go unchecked."

"Much of the actual policies as applied by ACS are driven by fear of an untoward incident of child abuse that will result in criticism of the agency and some of its employees. The concern over institutional self-protection, rather than children's best interests, explains a good deal of ACS's predisposition toward counterproductive separation of abused mothers and their children."

"Of the cases involving domestic violence where ACS files an Article 10 petition, the petition explicitly charges the victim with having failed to protect the child from witnessing domestic violence in 23.1 percent of cases. The abusive partner, by contrast, is charged with causing harm to the child by engaging in domestic violence in only 15.4 percent of the cases." "Strangely, despite positing awareness of the prior history of domestic violence as the source of the non-offending parent's culpability, the report showed that nearly half of the cases where allegations were indicated against the mother did not involve a prior history of domestic violence."

"The evidence demonstrated that City defendants['] practices and policies in this field harm children much more than they protect against harm." "Children's welfare, the state interest in which is so often the great counterweight deployed to justify state interference in family affairs, has virtually disappeared from the equation in the case of ACS's practices and policies regarding abused mothers."

"ACS frequently fails to adhere to the principles supporting the unity of abused mothers and children that it professes." "The statistics, individual cases, expert testimony and admissions of ACS employees demonstrate that many more separations of abused mothers and their children are made by ACS than are necessary for protection of the children." "ACS unnecessarily protracts the return of separated children to abused mothers - often even after the Family Court has ordered that they be reunited." "The case histories demonstrate long and unnecessary delays in returning children to the mother. The adverse effect of these delays is often disastrous to the physical and emotional well-being of the children unnecessarily separated from their abused mothers."

"The evidence clearly shows that the compelling state interest in protecting children, which justifies removals in other contexts, is not at all advanced, and is in fact greatly hindered, by ACS's policies of prosecuting abused mothers and removing their children." "As a matter of policy and practice, ACS does not conduct 'sufficient investigation' before removing children of abused mothers." "Where the father has battered the mother, ACS as a matter of policy and practice does not adequately investigate whether the mother has committed any acts of neglect. Instead, it automatically holds both parents liable as a unit and relies on faulty assumptions about the character and abilities of battered women." "As a matter of policy and practice, ACS fails to adequately investigate what the mother has done to try to protect herself and her children, and what services could be offered to render her efforts successful."

"As a matter of policy and practice, ACS does not merely fail to advance the best interests of children by these unnecessary separations - they harm children." "The total length of separations of mothers and children [ACS] have caused is measured in years. The suffering and trauma it has caused cannot be measured." "ACS policies and practice result in removals that are routinely unnecessary and ignore alternatives that would be far better for the children involved. These polices and practices cannot be justified by recourse to the interests of the child."

"As a matter of policy and practice, when ACS prosecutes a woman for neglected her child when she has done nothing but suffer battery at the hands of another, it does so under what might at best be termed false assumptions and findings. It infers from the fact that a woman has been beaten and humiliated that she has permitted or encouraged her own abuse. As a matter of policy and practice, ACS presumes that she is not a fit parent and that she is not capable of raising her children in a safe and appropriate manner because of actions which are not her own." "It desecrates fundamental precepts of justice to blame a crime on the victim." "Where two parents have an interest in the care and custody of a child, evidence that one has abused the child does not deprive the non-abusing parent of her familial rights."

"[T]he effect of the practice and policy of ACS is to punish the abused mother by separating her from her children and by not providing her and the children with adequate protection." "The delay in meaningful review caused by ACS's lack of specificity in allegations of 'failure to cooperate with services' irreparably harms mothers by greatly extending the duration of what have been shown to be often unnecessary removals. This lack of specificity adds to the total pattern of routine violations of mother's procedural due process rights."

The Widespread Nature of the Problem

"This is not a case of a single 'rogue case manager' repeatedly acting outside the borders of accepted policy; the individual cases presented to the court were the work of a number of different case managers, caseworkers, supervisors and attorneys that worked with them."

"Top [ACS] officials also were repeatedly made aware of the recurring constitutional violations that were resulting from these deficiencies in policy and training by the recurring lawsuits, news articles, and committee reports detailing the problems. The failure to adequately monitor, train, and guide the employees, where violations were not only likely but were regular and widely-publicized constitutes tacit approval by the upper management of the routine practice within the organization."

The Similarity to Slavery

"the exact language of the Thirteenth Amendment covers protection of the children's rights. They are continually forcibly removed from their abused mothers without a court adjudication and placed in a forced state custody in either state or privately run institutions for long periods of time. There they are disciplined by those not their parents. This is a form of slavery."

"a mother must be treated equally under the Fourth, Thirteenth and Fourteenth Amendments. Separating her from her children merely because she has been abused - a characteristic irrelevant to her right to keep her children - treats her unequally from other mothers who are not abused."

Failure of ACS to Carry Out Reforms

"The memorandum [Ex. MMM on "Engaging in Domestic Violence] only address phraseology. It entirely avoided the broader questions of whether a woman who has been abused should be charged with inadequate guardianship or other neglect on the grounds that she has somehow permitted her children to witness the violence inflicted upon her." "there has been no proof that the pattern of charging petitions or the practice of abusive separation by ACS of battered mothers and their children has yet been substantially modified in practice."

"No one in authority doubts that more training is necessary to prevent injustices by ACS to battered women and their children."

"One new principle [of ACS's Domestic Violence Guiding Principles issued in February, 2001 articulates a recognition that abused mothers and their children are separated too frequently." "These principles are intended to guide policy-making, but do not constitute actual policies that caseworkers are supposed to implement." The evidence does not indicate that these [Domestic Violence Guiding] principles have had the effect in the field of reducing improper separations of abused mothers and children." "The evidence does not indicate that these written ACS statements [ACS Case Practice Guide, CPS Domestic Violence Protocol, and Case Recording Template] have reduced improper separations of abused mothers and their children."

"[A] full escape valve for the worker ordering separation [of children from a battered mother] in an attempt to protect against criticism and to follow ACS tradition is provided [by the new Domestic Violence Protocol]: 'If the non-offending parent is not ready or able to accept services and the offender's behavior renders services insufficient to protect children from immediate danger, [caseworkers must] take the necessary protective measures." (emphasis in original, last set of brackets in decision) "In the absence of [a clear set of standards and guidelines to aid a caseworker in determining when the danger from domestic violence in a household reaches the point of creating imminent danger], caseworkers fall back on ACS's mission statement of resolving all ambiguity in favor of removing the child and perform many unnecessary removals."

"Dr. Gelles, the City defendants' own expert witness . . . testified that the documents ACS has produced related to assessing domestic violence do not earn a 'passing grade.'"

"Ms. Roberts, the ACS Director of Domestic Violence Policy and Planning, testified that while the new domestic violence protocol emphasizes holding batterers accountable, there was little existing guidance to caseworkers on how to implement this goal or to coordinate with police, and that future training was necessary to address the issue." [ACS Domestic Violence Guidelines state that] "'[i]f preventative services cannot effectively curtail domestic violence within the household, the abusive partner should be removed from the home by the police, or the non-abusive parent should be assisted in entering emergency shelter or another safe living situation with her child.' . . . This guideline is rarely followed by ACS in practice. ACS written policies currently in force do not mention this option, let alone highlight it as an option that is preferable to removal."

"Preventative services . . . are not utilized as a substitute for removal in many instances when they could be accepted by mothers to avoid separation from their children.""The full potential of this services model is far from being reached. Often their paradigmatic mother-child separation is preferred by ACS employees."

ACS approaches safety planning as a prescriptive process in which ACS offers services that the mother is expected to accept. Refusal to accede without objection is often interpreted by ACS as the mother's refusal to protect her children. In fact the mother often refuses because the plan or an element of the plan is unnecessary, fails to address the family's problem realistically, or actually increases the danger." "Safety planning, as it is practiced by ACS, amounts to the 'old contracting method that this was supposed to have replaced where the issue is what is effectively an ultimatum and then you use a priority of threat and intervention, including placement . . . as a way of coercing adherence to a plan. . .'"

"Plans for future changes to prevent abuse by ACS of battered mothers through unnecessary separation from their children are being considered by ACS. They have not yet been formalized or effectuated. Without the preliminary injunction it is unlikely that they will change ACS's present unconstitutional conduct toward abused mothers."

"There is a critical lack of space in existing City [domestic violence] shelters." "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." "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."

Need for Injunctive Relief

"Where a class of litigants are systematically deprived of constitutional rights by well-defined state practice, relying on retrospective, individualized relief is wasteful of judicial resources and harmful to the aggrieved parties."

ACS "actions are motivated by bureaucratic caution and ignorance that harm rather than help the interests of the child."

"Children and parent-child relationships are particularly vulnerable to delays in repairing custodial rifts. Even relatively short separations may hinder parent-child bonding, interfere with a child's ability to relate well to others, deprive the child of the essential loving affection critical to emotional maturity, and interfere substantially with schooling and necessary friendships."

"After this suit was commenced, and in large measure as a result of the litigation, ACS began to attempt remediation of the grave deprivations and threats of deprivations of plaintiffs' constitutional rights. These initial moves by ACS, while praiseworthy, have not cured the constitutional violations."

The Failure of the 18-b Panel

"The availability of Family Court review for removals that have already occurred often fails to provide mothers and children an effective avenue for timely relief from ACS mistakes." "For the mother and her children the situation is devastating. Even a Kafka would be hard put to address her Catch-22 situation: 'You have a right to your child, abused mother, but the child will be taken.' 'You have a right to due process before your child is taken, but we will take your child first.' 'You have a right to counsel to defend your rights in court, but we will assign counsel in a way that prevents her from protecting you.' 'The judge will protect you, but she cannot do so until effective counsel is available to you and such counsel is not available.'"

"The magnitude of the problem [of assigned counsel] is evidenced by the bellowing cries for reform sounding for years from every corner of the New York legal community."

"Domestic violence cases involve special problems that make the lack of effective representation particularly dangerous."

"The child removal process is long, potentially taking many months before the Family Court will determine whether a child should be returned to her mother."

"Where the state imposes systemic barriers to effective representation, prospective injunctive relief without individualized proof is both necessary and appropriate." "Even where courts approve a separation, the cases brought by ACS are so skewed against the mother as to prevent the courts from effectively protecting due process and substantive rights of mothers and children."

"representation of counsel of abused mothers is largely a sham." The 18-b system "cruelly supplies attorneys who can not, and do not, properly represent her. They do not investigate. They do not consult with their client. They are not available for consultation. Their very existence delays hearings and proper prompt resolution of cases in Family Court, resulting in unnecessary separation of mothers and children and unnecessarily prolonging those separations."

"the discrete class of mothers in subclass A are all accused under the same dubious theory of neglect, all are deeply concerned with caring for their children, all face state proceedings complicated by important yet subtle issues of fact, state law, and constitutional law, and all would have a good chance of reacquiring custody of their children sooner if represented by effective counsel."

"every mother who deserves counsel but cannot afford to pay for a lawyer is being granted counsel who [is] rendered ineffective by system-wide statutorily created defects." "The 18-B compensation rules, as currently applied, systematically deprive all indigents of effective counsel."

"When the mother must speak through appointed counsel she is lulled into not acting for herself, and then sold out by the system."

"The evidence demonstrated a broken system that not only prevents 18-B counsel from being effective, it prevents private lawyers from filling the void." "the evidence demonstrates that the system as a whole falls short and results in a form of betrayal of those to whom effective counsel was promised. And it is the system as a whole for which the state is responsible."

"The compensation ceiling set by this injunction is also likely too low. Both may be increased by state courts in individual cases."

Summary of the findings

The following is Judge Weinstein's own summary of his findings of fact:

"By clear and convincing evidence the court finds: ACS unnecessarily routinely prosecutes mothers for neglect and removes their children where the mothers have been the victims of significant domestic violence, and where the mothers themselves have done nothing wrong. ACS unnecessarily routinely does so without having previously ensured that the mother has access to the services she needs to protect herself and her children. ACS unnecessarily routinely removes children without a court order. ACS unnecessarily routinely fails to return these children to their mothers promptly after being ordered to do so by a court. Even as it unnecessarily prosecutes the mother and demands that she participate in often ill-advised services, ACS unnecessarily routinely fails to engage the batterer, demand that the batterer participate in needed services, attempt to remove the batterer from the household, or otherwise hold the batterer accountable.

"ACS caseworkers and case managers who make decisions about what services to provide and when to remove children do so without adequate training about domestic violence. ACS practice is to unnecessarily separate the mother from the child when less harmful alternatives involving non-separation are available.

"On all of these issues ACS written policies offer contradictory guidance or no guidance at all. As indicated [in] Parts IV and V, infra, these practices by ACS violate the constitutional rights of battered mothers and their children, unnecessarily causing significant harm both to battered women and their children.

"None of the reform plans submitted by ACS to date can be reasonably expected to resolve these problems within the next year. All of these problems are aggravated by the fact that the assigned counsel system that most mothers rely on is broken, seriously hampering a mother's ability to seek, and the courts' ability to provide, meaningful judicial relief.

"All findings of fact in this memorandum and order have been established by clear and convincing evidence - a standard far higher than the preponderance standard required in this civil case."