Judge Rebukes City Officials for Removing Children From Homes of Battered Women
By William Glaberson
Originally published in The New York Times, March 5, 2002
In a scathing opinion released yesterday, a federal judge excoriated city officials for what he said was a routine practice of removing children from battered mothers by claiming that the mothers were "engaging in domestic violence."
The judge, Jack B. Weinstein, of Federal District Court in Brooklyn, said the "pitiless double abuse of these mothers" over many years amounted to violations of their constitutional rights. He said the practice harmed the children and resulted from "benign indifference, bureaucratic inefficiency and outmoded institutional biases."
In his 181-page opinion, Judge Weinstein also declared that the state provided such low payments to lawyers appointed to represent poor women facing the loss of their children that that, too, was a constitutional violation.
Lawyers for the women in the class-action suit said battered women confront similar problems across the country and predicted that the ruling would serve as a model for lawsuits against child welfare agencies nationally.
Both city and state officials said they planned appeals, saying the judge improperly expanded the law and misstated the facts. The city's corporation counsel, Michael A. Cardozo, said the ruling was incorrect and failed to recognize "the tremendous progress the Administration for Children's Services has made in this area."
Judge Weinstein, who was appointed by President Lyndon B. Johnson, has a long history of pushing the edges of the law, and both critics and admirers have labeled him a quintessential liberal activist judge.
Mr. Cardozo, the city's chief lawyer, said the evidence showed that children were removed from abused mothers by the agency only as a last resort and less than 15 percent of the time. At a three-week trial last summer, the Administration for Children's Services argued that it did not remove children from their mothers solely because the mothers were abused, but said there were often other problems in a home where a mother was battered, such as drug abuse. The agency's commissioner at the time, Nicholas Scoppetta, is now the fire commissioner.
"The evidence before this court," Judge Weinstein wrote, "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."
In a letter to lawyers in the case, the judge said he was distributing the opinion as a proposed ruling. He said he planned to issue substantially the same decision in 10 days.
The decision was an explanation of a sketchy order Judge Weinstein issued in December that directed the state to raise the fees paid to the women's lawyers and ordered the city to stop removing children from mothers on the grounds that the mothers were victims of domestic violence. The judge had delayed the effect of that preliminary injunction order until June.
One of the lawyers for the women, Carolyn Kubitschek, said Judge Weinstein agreed with the plaintiffs' lawyers that child welfare workers often removed a child without considering the trauma that separation from a mother can cause.
"The decision," Ms. Kubitschek said, "says to the agency that you can't hold the victims accountable for the act of the batterers."
Judge Weinstein's order on the fees paid to lawyers for indigent women has already attracted widespread attention. It dealt only with the lawyers provided to indigent women who face the loss of their children. But it comes at a time when state officials have widely acknowledged that there is a crisis caused by the low fees authorized for lawyers for the indigent by the State Legislature: $40-an-hour for court time and $25 an hour for work outside of court.
Officials have acknowledged that there are not enough lawyers willing to handle the cases for the authorized fees. Judge Weinstein's order directed that the lawyers for the women facing the loss of their children be paid $90 an hour.
In his opinion, Judge Weinstein described the situation of poor women facing the loss of their children as Kafkaesque and said the appointed- counsel system was "largely a sham."
The women have rights, he said, but they are left to assert them with lawyers who do not investigate their cases or even confer with them.
Richard Rifkin, a deputy attorney general, said the state had not yet determined the arguments it would make on appeal on the fee issue. Since a 1963 Supreme Court decision, Gideon v. Wainwright, courts have acknowledged that an indigent defendant in a serious criminal case has a constitutional right to a lawyer.
But Mr. Rifkin said Judge Weinstein seemed to have expanded that too far in the case of the battered women. "There are very serious issues here," Mr. Rifkin said, "and they are issues that should be heard by an appellate court."
Judge Weinstein's decision said he was not persuaded by assertions by city officials that they do not have a policy of removing children from abused mothers. He said the evidence indicated that the agency had about 1,750 cases a year in which it concludes that children are unsafe because of domestic violence.
An agency memorandum in August 2001 acknowledged the history of claiming that battered women were "engaging in domestic violence" and directed that such language should "never be utilized."
But the judge concluded that the memorandum only addressed phraseology and that there was no proof that the policy of taking children away from battered mothers had been changed.
"It desecrates fundamental precepts of justice," Judge Weinstein wrote, "to blame a crime on the victim."
