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No. 02-7079, 2nd Circuit, filed October 30, 2002
This is a class action lawsuit, which NCYL joined as amicus curiae, against New York City’s Administration of Children Services (ACS) challenging its practices of removing children from battered mothers on the basis of neglect when the mothers themselves have done nothing wrong. ACS had a practice of removing children from the care of battered mothers without conducting adequate investigations; obtaining the appropriate court orders for removal of the children; and removing children for reasons other than a threat of imminent danger.
The District Court concluded that ACS’ violated the federal constitutional rights of battered mothers and their children. The Court based this conclusion on findings that ACS unnecessarily prosecutes mothers for neglect and removes their children when the mothers have been the victims of significant domestic violence, and when the mothers themselves have done nothing wrong; ACS routinely removed children without court order; ACS failed to return children in this situation promptly to their mothers; that ACS unnecessarily separates mothers from the child when less harmful alternatives involving non-separation are available; that the assigned counsel system that mothers rely on for legal protection is broken and hampers a mother’s ability to obtain meaningful judicial relief; and a host of other findings. On December 21, 2001 the District Court issued a preliminary injunction ordering ACS to discontinue its unconstitutional practices and ordered the City and State to pay assigned counsel for battered women in dependency proceedings at the rate of $90 per hour. On March 17, 2002, the Court issued an extensive memorandum setting forth the legal and factual bases for the preliminary injunction. ACS and the other government defendants appealed this injunction to the Second Circuit.
On appeal, NCYL and the other amici argue that not only are ACS practices unconstitutional, but there is also no child welfare basis for such practices. In addition, amici assert that the abstention doctrine that would prohibit the district court from assuming jurisdiction in this matter does not apply. The class action and the Court’s preliminary injunction do not interfere with the individual juvenile court proceedings as required to apply the abstention doctrine. Amici also assert that individual proceedings are inadequate for seeking system-wide relief from unconstitutional government actions.
On September 16, 2003, in a 2-1 decision, the Second Circuit left the preliminary injunction in effect and held the appeal in abeyance. The Court concluded that New York state law was not clear on the subject of whether the state has the legal right to remove children who are “exposed” to domestic violence. In an effort to establish clarity, the Second Circuit referred three questions to the New York Court of Appeals: Whether allowing your child to witness domestic violence against yourself constitutes neglect under New York law; whether the injury, if any, to the child from witnessing the domestic violence constitutes imminent risk allowing ACS to remove the child without court order; and whether allowing the child to witness such domestic violence is sufficient to allow a Family Court order of removal without additional, particularized evidence. The Second Circuit did rule in favor of the argument raised by amici as it found that defendants had failed to meet the criteria necessary for the court to abstain from deciding the case. On November 25, 2003, the New York Court of Appeals agreed to hear the issues referred by the Second Circuit. Oral arguments were held before the New York Court of Appeals.
In October 2004, the New York Court of Appeals held that presumptions that a child witnessing domestic violence is “neglected” and that a child exposed to domestic violence should be removed are unacceptable. Shortly after this decision, the parties settled the case and agreed that domestic violence does not automatically warrant placement of children in foster care.
Counsel: Carolyn Kubitschek; Jill Zuccardy, Center for Battered Women’s Legal Services; Monica Drinane, Legal Aid Society, Juvenile Rights Division; Karen Freedman, Lawyers for Children, Inc.; Susan Lambiase, Children’s Rights; William Grimm, NCYL.
Updated Dec. 20, 2005
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