The New York City family court isn’t moving fast enough to hear some parents’ challenges of children’s foster care placements, a state appeals court ruled late last week.
And, within days of the ruling, advocates say they’ve begun citing the precedent-setting decision in new filings for such hearings. Court administrators adjourned those reviews last month due to the coronavirus pandemic, and are struggling to scale back up.
The Appellate Division’s First Department court in Manhattan ruled six months was too long for the city court to get through testimony from only four witnesses, in a case that concluded in one father’s favor, long before the pandemic began.
“Let’s ask the child whether it’s fair that the system just clogs along like a slug, meanwhile they are with a stranger,” one justice said during a February broadcast of oral arguments.
Four justices wrote last week’s unanimous opinion that a Bronx family court inappropriately let scheduling conflicts outweigh the dire emotional and constitutional stakes for two children and their father, identified in court documents only as Monroe W.
“We begin our discussion with the undisputed principle that a parent’s interest ‘in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests,’” wrote Justice Anil C. Singh on behalf of his colleagues, quoting a 2000 Supreme Court decision. “We find that a parent is entitled to a prompt hearing on the agency’s determination to remove the children from his or her physical custody.”
The city child welfare agency, the Administration for Children’s Services, removed the two children from home in late January 2018 after alleging that Monroe used severe corporal punishment on one of his girls, then ages 4 and 6. The lower court eventually found the allegations against the father not credible, after hearing from four adult witnesses whose testimony raised questions about the severity of the harm and source of the daughter’s injuries.
His daughters were not returned to him until nearly six months later, and then only for a trial period. Meanwhile, Singh’s ruling highlighted, the children pleaded to remain with him when the visits ended and began wetting the bed while in foster care.
On appeal, the justices noted that the due process rights of parents like Monroe W. and the constitutional stakes of any child removal far outweighed the lack of deadlines in the state law or the logistical challenges the family court might face hearing parents’ challenges more quickly. Any “post-deprivation” hearing should be conducted “in hours and days, not weeks and months,’” Singh wrote.
Advocates for parents and children called the Monroe case an important precedent. They hope it will bolster their long-standing contention that the courts often miss deadlines for parents to challenge removals.
During testimony in Albany in November, Emma Ketteringham, managing attorney of Bronx Defenders’ Family Defense Practice said the problems include too few judges and a lack of evening and weekend courtroom hours. “As a result, families are separated needlessly and kept separated for longer than necessary,” she told lawmakers.
Pandemic-related court closures have exacerbated those delays for the foreseeable future. The city’s family courts are operating five virtual courtrooms, hearing only “essential applications” related to family matters, including placement of children in foster care and juvenile detention.
But advocates have said their challenges to foster care placements were put on hold last month as the pandemic escalated. Courts have recently begun to review cases in a limited fashion, without witnesses testifying in the virtual hearings.
Lucian Chalfen, director of public information for the Office of Court Administration, wrote in an email that all 65 New York City family court judges are working remotely, and are “in the process of addressing dozens of orders to show cause on a variety of issues including the return of children currently in foster care.”
Ketteringham said Bronx Defenders plans to begin citing the Monroe decision in all its new requests for quick reviews of foster care placements, on behalf of clients.
“This decision will reinforce that these hearings must be given priority, and they must be done expediently,” said Ketteringham, whose firm represents parents accused of child abuse or neglect, who are disproportionately black and low-income in New York City. “These families have not gotten the urgency they are due.”
Bronx Defenders was supported in its appeal by New York University’s Family Defense Clinic. Chris Gottlieb, co-director for the clinic, said the Monroe decision is the latest sign of an important larger shift.
“It’s an important indicator of the maturing of the family defense field,” Gottlieb said. “The fact that the defender offices are able to identify systemic problems and then lay the groundwork to develop appeals that change the legal landscape is the sign of an unfolding civil rights movement.”
In a footnote, the Manhattan appellate justices suggested there could be some flexibility on hearing timelines for family court judges, based on “case-by-case evaluation.”
Michael Fitzgerald can be reached at [email protected].