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Date: Thu, 30 Dec 2004 01:42:47 -1000
From: Viviane Lerner <viviane@interpac.net>

See also
http://www.post-gazette.com/pg/04363/433483.stm
How domestic violence left so many kids alone
Close-Up 2004: The news that defined the year
Tuesday, December 28, 2004
By Sally Kalson, Pittsburgh Post-Gazette
Andrew and Andre Umphrey, ages 8 and 11, are haunted by the thought
that while their mother was being abducted from church at gunpoint,
they were one floor below at youth services and helpless.
--------
http://www.thetranscript.com/Storie...2622282,00.html
Domestic violence takes few holidays Judges are kept busy dealing with
disputes
By Hinda Mandell
North Adams Transcript
>> "A restraining order is only as good as a person it's served
against," she said. "If the person it's served against doesn't have any
respect for the court ... they're going to ignore it. I've definitely
have had women come in here and say it's a worthless piece of paper."<<
-------
http://sfgate.com/cgi-bin/article.c...BAGT0AHU9B1.DTL
THE BATTLE OVER SAME-SEX MARRIAGE
S.F. can't challenge 'mental disorder' argument
Judge won't allow city to submit opposing evidence
- Bob Egelko, Chronicle Staff Writer
Tuesday, December 28, 2004

>>The judge who will decide the constitutionality of California's ban
on same-sex marriage has refused to let San Francisco submit expert
studies to counter their opponents' authorities, who contend that
children need opposite-sex parents and that homosexuals can be cured.<<

Lysistrata to the rescue!
Viviane
============

http://writ.news.findlaw.com/grossman/20041228.html
A New York High Court Decision on Domestic Violence:
Can a Parent Be Guilty of Neglect Simply Because She Is Victimized in
the Presence of Her Children?
By JOANNA GROSSMAN
lawjlg@hofstra.edu
----
Tuesday, Dec. 28, 2004

The New York City Administration for Children's Service (ACS) was
alleged to have had a policy dictating that children be removed from
mothers who were victims of domestic violence. Federal District Court
Judge Jack Weinstein characterized this claimed policy as a "pitiless
double abuse": These women were forced to suffer the battering, first,
and the loss of their children, second.

In a federal lawsuit brought on behalf of a class of mothers and their
children, Judge Weinstein granted a preliminary injunction to stop the
practice. He did so in part because he ruled there was a likelihood
that constitutional violations would be proven at a trial on the
merits.

On appeal, however the U.S. Court of Appeals for the Second Circuit
sought to avoid considering the difficult constitutional questions the
case presented. Accordingly, it certified several questions of
statutory interpretation to the New York Court of Appeals.

(In some circumstances, federal courts may "certify" - that is,
address - questions of state law to the highest court in a given state,
which in New York is the Court of Appeals. This can occur when the
questions are of "first impression," meaning there is no controlling
state precedent on them. The idea behind the doctrine is that federal
courts should defer to state courts on questions of state law.)

The federal court hoped that if the New York court were to say that
the policy violated state statutes, then the difficult constitutional
questions could be avoided for now. And that's exactly what the New
York Court of Appeals did say, in Nicholson v. Scoppetta.

There, it held that removals are not authorized when the sole
allegation is that a child witnessed his mother's being abused. As a
result, just last week, the parties to this long-running class action
reached a settlement.

The settlement represents a concession by New York City that automatic
removal of the child in these cases is not justifiable under the
state's abuse and neglect law. However, the settlement doesn't dictate
how ACS should handle cases like this in the future.

The Lawsuit's Path: How It Began, and How It Progressed

Nearly five years ago, Sharwline Nicholson brought a federal lawsuit on
behalf of herself and her two children under Section 1983 -- a federal
statute that provides a private right of action for, among other
things, violations of federal constitutional rights.

Nicholson's suit was later consolidated with others, and eventually
certified as a class action. The class consisted of mothers and their
children who were separated because the children were deemed neglected
by virtue of their exposure to their mothers' being battered. The
children in these cases had not themselves been battered, nor did they
appear in danger of becoming abused. And in each case, ACS had done an
"emergency" removal without any prior court authorization.

The class action lawsuit revolved around the allegation that ACS, as a
policy, removed children in this situation because the mothers, as
victims, were alleged to have "engaged in domestic violence."

The federal district court found that ACS had routinely removed
children from mothers who had engaged in no violence themselves and,
worse still, it had failed to ensure that the victim-mother had access
to necessary social services.

Other findings the court made included that the agency had failed to
return children when ordered by a court; that it had provided
inadequate training for case managers; that it had failed to consider
alternatives short of removal that might have been less harmful to the
children; and that it had been unable to reform the system in a timely
fashion. One caseworker had testified that it was common for the agency
to wait a few days after removal before going to court 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 even
going to court."

On these findings, the District Court found likely violations of
constitutional rights. These rights were rooted in principles of
substantive and procedural due process, as well as in the Fourth
Amendment's protections against unreasonable search and seizure.

On appeal, the Second Circuit addressed the question whether the
District Court had abused its discretion in finding that ACS' removal
practices amounted to a policy of the agency and, as such, could effect
constitutional violations that were attributable to the city as a
whole. ("Abuse of discretion" is the standard of review for federal
appellate courts' review of federal district court's factual findings.)

The Second Circuit held there had been no abuse of discretion, and
therefore let Judge Weinstein's findings stand. However, the Second
Circuit stopped there. It did not, that is, reach the sticky question
of whether the state could constitutionally intervene in the
parent-child relationship under those circumstances. (One judge
dissented, however, believing there was no proof that the actions in
individual cases amounted to a "policy" of ACS.)

Instead of reaching the constitutional issues, as noted above, the
Second Circuit certified several questions to the New York Court of
Appeals.

Is it "Neglect" to Allow a Child to Witness Domestic Violence?

The first certified question went to the heart of the case: Is it
"neglect," under New York law, for a victim of domestic violence to
permit her children to be exposed to her abuse?

New York's Family Court Act defines a neglected child as one "whose
physical, mental or emotional condition has been impaired or is in
imminent danger of becoming impaired as a result of the failure of his
parent or other person legally responsible for his care to exercise a
minimum degree of care. . . ."

The New York Court of Appeals interpreted this definition to require a
showing of harm (actual or imminent) and a showing that the harm is a
consequence of the parent's failure to exercise proper care of
supervision.

The state definition of neglect is important, as it marks the
constitutional line between parent and state. Within bounds, parents
have a constitutionally protected liberty interest in raising their
children as they see fit. Parents are presumptively entitled to
exercise complete discretion over the care, custody, and control of
their children.

But there are limits to parental discretion. When parental behavior or
decisions threaten the well-being of a child, the state can sometimes
intervene without infringing on the constitutional rights of parents.
Removal of a child under a "neglect" statute is one of the ways the
state intervenes.

Because of the constitutional protection for parental rights, state
neglect statutes typically require a showing of harm to a child before
authorizing removal. The New York statute follows this model. In the
words of the statute, a parent must only exercise a "minimum degree of
care" to avoid a finding of neglect, and the presence or absence of
"ideal," or even "good," parenting is not relevant.

The New York statute also requires a causal link between parental
behavior and the harm, since removal of a child would certainly be
unwarranted when harm befalls a child despite a parent's best efforts
to avoid it.

A child may suffer crippling injuries in a car accident, for example,
but that would not result in a finding of "neglect" unless, at a
minimum, the parent's recklessness was the cause of the accident. The
harm must be "clearly attributable" to the parent's failure to exercise
the "minimum degree of care" in order to qualify as neglect.

Likewise, parents may sometimes behave recklessly in ways that do not
result in actual or imminent harm to a child. Then, too, removal of the
child would not be authorized.

In an earlier New York case, for example, the Court refused to uphold
a removal of a child based solely on the fact that a newborn tested
positive for a controlled substance at birth. While the mother had
caused this situation, it was not clear whether the substance would
lead to impairment or imminent risk of impairment, as required by the
statute.

How Do These Standards Apply to Battered Mothers?

With respect to domestic violence in the household, it is often the
mental or emotional (as opposed to physical) health of a child that
could potentially be impaired. But what is the "minimum degree of care"
required from a battered mother in terms of shielding her children from
the abuse?

According to Scoppetta, "[c]ourts must evaluate parental behavior
objectively: [asking] would a reasonable and prudent parent have so
acted, or failed to act, under the circumstances then and there
existing." Of course, for a battered mother, this is a loaded inquiry.

As the Scoppetta court recognized, an assessment of the reasonableness
of such a mother's actions must take into account: "risks attendant to
leaving, if the batterer has threatened to kill her if she does; risks
attendant to staying and suffering continued abuse; risks attendant to
seeking assistance through government channels, potentially increasing
the danger to herself and her children; risks attendant to criminal
prosecution against the abuser; and risks attendant to relocation."

Simply recognizing the many factors that might affect a mother's
decision whether to leave a household or relationship in which she was
being abused reflects poorly on ACS' past practice of automatically
removing children from a victim-mother. As Professor Justine Dunlap has
explained, the ACS policy incorporated outdated views of battered
women, in which they are presumed to be helpless and incapable of
making reasonable decisions.

Because of the fact-intensive nature of a determination of
"reasonableness," the New York Court of Appeals concluded that
"neglect" cannot be proven by a mere allegation that the mother has
been abused and that the child has witnessed the abuse.

This much was a significant victory for the plaintiff class members.
But the court did not rule out the possibility of finding "neglect" by
a battered mother that centers around the problem of domestic violence.

By way of example, the court noted that "neglect might be found where
.. . . the mother acknowledged that the children knew of repeated
domestic violence by her paramour and had reason to be afraid of him,
yet nonetheless allowed him several times to return to her home, and
lacked awareness of any impact of the violence on the children." Yet,
there, the court explained, the "neglect" does not flow directly from
the abuse suffered by the mother, but from her failure to take even
minimal steps to shield the children from it.

Where to Go From Here: Scoppetta's Implications In New York and
Elsewhere

The decision in Scoppetta not only produced the settlement in that
case, but also, commentators predict, will have far-reaching
implications. In New York, emergency removals due to domestic violence
are now significantly less likely to occur. And removals after due
process are also less likely, given the court's view that greater
scrutiny must be given to the merits of any proposed removal. (In the
only appellate decision in New York since Scoppetta, a removal was
upheld; but, there, the parent was the instigator of the violent
episode and was already subject to supervised visitation.)

In addition, the original injunction in the case caused New York City
to offer better training on domestic violence to its workers, and to
review individual cases more carefully - in order to assess the actual
or imminent impact of parent-to-parent violence on children in
particular households.

Scoppetta is likely to have implications outside of New York, too. Many
states have struggled with the treatment of domestic violence in the
context of custody, visitation, and abuse and neglect. New York's
approach might well cause other states to revisit harsh approaches to
removals of children from the battered parent.

This would indeed be a good effect, given the tremendous harm such a
removal can cause a child. While there is no doubt that a child can be
harmed by living in a household plagued by violence, separation from
the victim-parent and placement in foster care is rarely an appropriate
solution.

Scoppetta and the changes it might induce are a victory for battered
women, as well. The practice of removing children from the victim of
domestic violence invokes stereotypes about mothers and battered women
- stereotypes eloquently described by Professor Elizabeth Schneider in
her 2000 book, Battered Women and Feminist Lawmaking. Mothers,
Schneider argues, are wrongly assumed to be responsible for all harm
that befalls their children, even when it comes from another source.

And, ironically, as Professor Dunlap points out, due to ACS' practice
of removing children when it learned of their mothers' abuse, the very
women who sought help from social services for their own victimization
were "most likely to become entangled in the child welfare system."

Both Scoppetta, and New York's willingness to abandon its practice of
automatic removal, are, at least, steps in the right direction for
these mothers and their children.
------
Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra
University. Her other columns on other family law topics -- and on
trusts and estates, and discrimination, including sex discrimination
and sexual harassment -- may be found in the archive of her columns on
this site.

==============
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