Reforming the Child Welfare System

• Author: Carolyn Kubitschek
• Position: Adjunct Professor, Benjamin N. Cardozo School of Law. Founding partner of Lansner & Kubitschek
• Pages: 383-393

Page 383

The question I was asked to address is: Can the New York City Administration for Children's Services (ACS) be trusted to monitor itself? The answer is that ACS cannot monitor itself because it does not believe that it is subject to any restrictions. In the spring of 2001, at a forum at New York Law School, Nicholas Scoppetta, who was then Commissioner of ACS and an experienced attorney, was asked whether he believed that the Fourth Amendment applied to the Administration for Children's Services. He said, "No" -despite several rulings by the United States Court of Appeals for the Second Circuit that the Fourth Amendment did indeed apply.¹ Today, Commissioner Scoppetta decried class action litigation against ACS on the ground that ACS would not be able to live up to the terms of any consent judgment to which it agreed. An organization that does not think it has to follow the Constitution, the supreme law of the land, or its own agreements cannot be trusted to follow any rules.

ACS responds only when it is sued and sometimes not even then. You have heard many speakers this morning talk about how terrible the foster care system is. I agree. Foster care is harmful to children. Too often foster children suffer horrific abuse;² too often the abuse that they suffer in foster care is more horrific than the problems in their own homes which caused them to go into foster care in the first place. Children who are lucky enough to find decent foster homes are not spared all trauma. They are torn from their families -families who are often loving- despite whatever inadequacies have caused the children to bePage 384 placed in care. That sundering causes trauma to the children.³ Strangely, one of our speakers today suggested that the way to reform foster care is to have more of it. Professor Bartholet said, "Let's have more intervention. Let's have more case workers go into more homes and remove more children."

That proposal has actually been tried in three different locations: New York City, Illinois, and Connecticut. In all three of the cases the motivation was the same: a child died, a child who was, "known to the system," as they say, a child who the child welfare authorities had investigated and left in her own home. In New York, as Commissioner Scoppetta noted, the child was Elisa Izquierdo. In Chicago it was Joseph Wallace. In Connecticut it was Emily Hernandez. The same thing happened in each of those three states: the number of reports to the Child Abuse Hotline skyrocketed; the number of investigations of parents for alleged abuse and neglect skyrocketed; and the number of children who went into foster care skyrocketed. However, the number of children who died also increased.

Greater intervention does not work. It has resulted in deaths of children known to the system. One of the reasons that it does not work is that the resources of the child welfare systems get diverted. The children who ought to be removed from their homes are not removed because the child welfare people are too busy investigating and removing the children who should not be removed from their homes. One of the ways that the system must be reformed is to keep the children who should not be in foster care out of foster care. The system we have, the Administration for Children's Services, with its $2.3 billion annual budget, has not worked.

To Commissioner Scoppetta's credit, he wanted to reduce the foster care population, and over the last six years the foster care population in New York City has gone down significantly. The number of deaths of children known to the system has also gone down. The experience of these six years has shown that decreasing the number of children in foster care does not decrease safety to children. Unfortunately, when ACS first becomes involved with a family, it responds with the presumption that the parents are neglectful and that it is most favorable to remove the children and place them in foster care.

Page 385

The number of reports to the Child Abuse Hotline regarding New York City children is, as we have heard, fifty-five thousand per year. ACS investigates each and every one of those reports. ACS handles every investigation with a full court press, as if every single case potentially involves horrendous physical or sexual abuse. Although it is well-known that some people make maliciously false reports of child abuse, ACS takes every one of those fifty-five thousand reports at face value, and makes no attempt to assess the credibility or motives of the reporter. ACS investigates the possibility of every form of child abuse and neglect, regardless of the type of abuse which has been reported. ACS also investigates every adult family member as a potential perpetrator of the alleged abuse or neglect, regardless of the report that it receives. For example, when a domestic violence program reported that Benjamin Hunter mistreated his children by attacking their mother, Michele Garcia, in their presence, ACS investigated Ms. Garcia as a potentially neglectful parent.⁴ Ultimately, ACS charged her with child neglect in the Family Court and obtained a court order, ex parte, removing the children from her.⁵

At the end of its investigations, ACS determines that almost two-thirds of the reports are unfounded -that is, that there is no credible evidence whatsoever of any type of abuse or maltreatment.⁶ In the remaining one-third of the reports, ACS finds "some" evidence of maltreatment and marks cases "indicated."⁷ That does not mean conclusive evidence of maltreatment, or even a preponderance of evidence, but something less than a preponderance.⁸ Of those cases, more than 25% are closed immediately upon being marked indicated -that is, ACS determines that there is no need for further intervention.⁹ Thus, it is the one-quarter of the fifty-five thousand cases that drive the entire system -those are the cases that ACS refers to when they talk about protecting children from their supposedly abusive and neglectful parents.

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Investigations themselves harm children. One of the things that we as Americans hold very dear is the principle that the government cannot just come into our lives and snoop. ACS does not believe in that principle. It believes that it has the authority, the right, and even the obligation to go wherever it wants whenever it wants regardless of the evidence or the consequences. When ACS takes all of the allegations of all fifty-five thousand reports totally at face value and investigates each one, ACS employees conduct searches and invade the privacy of parents and children, and claim that that intrusion is for the good of the children. The children rarely agree with that assessment.

Lansner & Kubitschek works to prevent children from suffering abuse in foster care by keeping children out of foster care entirely. What we have seen in these cases is a system run amok -a system in which ACS does not monitor itself, but rather routinely violates the most basic and precious rights of children and parents. For examples of what one federal judge termed "widespread and unnecessary cruelty"¹⁰ on the part of ACS, see the judge's description of ACS's treatment often battered mothers and their children, as described in Nicholson v. Williams.¹¹ Other examples abound in which ACS needlessly removed children from loving parents and placed them in foster care.¹²

Commissioner Scoppetta talked about consent decrees and how they do not work. I do not know about consent decrees because ACS has never agreed to any of Lansner & Kubitschek's cases. They resist and resist, and when they lose a case, they appeal. An example, is a case we handled, Tenenbaum v. Williams, where ACS made and lost two dispositive motions,¹³ took the case up to the Second Circuit, and ultimately sought certiorari from the Supreme Court before the case was over.¹⁴

Tenenbaum...