When Sharwline Nicholson thinks about what happened in January 1999, it’s not about the fact that her boyfriend beat her for the first and last time.
Instead she thinks about her children, who were removed that night and put into foster care, while Nicholson was charged with child neglect–for an offense called “engaging in domestic violence.” “I’ve had no time for knowing I was a victim of domestic violence,” Sharwline (pronounced like “Charlene”) Nicholson says. “When they removed my children, the physical pain was overlooked.”
As the lead plaintiff in a federal lawsuit against the City and State of New York, Nicholson’s now part of a landmark decision–rendered in March by District Court Judge Jack Weinstein–that could change child welfare as we know it.
A Jamaican immigrant and single mother who works full time and attends college at night, Nicholson lives in Brooklyn with her son, Kendell, and baby daughter, Destineé. Destineé’s father, Claude Barnett, had already moved to South Carolina, visiting “once a month or so to see the baby,” Nicholson says. That day in January, Claude, who had never hit her before, broke her arm and smashed her face while Kendell was in school and the baby was asleep in the next room. He left before the police arrived, and Nicholson found a trusted neighbor to take care of her kids until she came home from the hospital.
In the hospital the next morning, she received her first call from the Administration for Children’s Services (ACS), telling her they had removed her children, and ordering her to a Family Court hearing. By the time the court date arrived, the children were in foster care. She faced the bizarre charge of “engaging in domestic violence” without a lawyer: Only afterward was she assigned a series of overworked, underpaid Family Court lawyers, who had no time to do more than glance at her files.
It took three weeks for Nicholson to get her children back, during which time Kendell reported being hit by one foster parent and had asked the next, “Are you going to hit me?” And the neglect petition remained until Nicholson found help at Sanctuary for Families, a New York City social services provider for mothers and children affected by domestic violence. “At first, I couldn’t believe what I was hearing,” says Jill Zuccardy, director of the child protection project at Sanctuary. “Then more and more women were coming to me with the same set of experiences.”
Like April Rodriguez, who sought refuge from her abusive husband at her grandmother’s home: ACS followed her there and removed the kids because they didn’t like the bedding provided. Or Ekaete Udoh, who’d finally obtained an order of protection after twenty years of abuse, after which her batterer returned to his native Nigeria; Udoh also faced a neglect petition for “engaging in domestic violence,” while ACS placed her teenage daughters in foster care. Another woman, who actually asked ACS to help her with her alcoholic, abusing husband, was referred instead to family counseling and told to go to a shelter; when her husband threatened to kill her, ACS did nothing to help her but removed the children. Michele Garcia lost her children because she’d “blatantly refused to cooperate with ACS,” since she insisted they only visit when previously agreed–fearing that unannounced visits would scare the children. (In Garcia’s case, ACS ignored the advice of its own child protective services supervisor, Cheryl Meyers, who saw no reason for removal.)
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All these removals occurred without the court orders required by ACS’s own regulations except in an emergency. And all of these mothers found their way to Sanctuary, which filed a class-action lawsuit in January 2001 charging violation of both mothers’ and children’s civil rights.
The case was assigned to Judge Weinstein, who is famous for crafting remedies in cases involving Agent Orange, tobacco and asbestos, and has inserted his voice into debates on the death penalty and the Rockefeller drug laws. “He was unlike any judge I’ve encountered,” says Nicholson. “He really wanted to be educated. He didn’t want any half-and-half stories.”
After a two-month trial that included forty-four witnesses, including Nicholson, nine other mothers in similar situations and numerous experts, Weinstein issued a landmark ruling on March 11 in the case, In Re Nicholson, et al. He found that ACS often alleges neglect by battered mothers simply for being battered; has failed to assist these mothers and to hold abusers accountable; has removed children unnecessarily; hasn’t offered adequate training about domestic violence; and has promoted this bad behavior in its written policies. All of this, he explained in a 188-page, carefully worded decision, violates half the Bill of Rights. He cited the Fourth Amendment, the Ninth and even the Thirteenth, comparing the mothers’ stigmatization and loss of control to slavery. He was perhaps most outraged by ACS’s trashing of the Fourteenth Amendment, in its flagrant disrespect for due process.
Nicholson was awarded $150,000, with the other mothers receiving similar amounts; but the real weight of the judge’s ruling is in his plan for change. Weinstein ordered ACS to stop removing children from mothers whose only “crime” is being battered, and to work collaboratively with domestic violence advocates to improve its approach to such cases. He also demanded that New York State more than double the compensation for publicly funded Family Court attorneys, so that these mothers can have the representation they deserve.
No one’s addressed these issues in court before, and the national implications are huge. The only way to grasp the significance of the challenge Weinstein has thrown down is to look at the systems that have bred these abuses.
In Re Nicholson is about race and class as well as gender. Domestic violence crosses class barriers, but child protective agencies largely leave affluent families alone. Eighty-five percent of foster children in New York and the majority of the Nicholson plaintiffs are from black, Hispanic and immigrant families.
How much does child maltreatment actually coexist with adult domestic violence? Published estimates range from 6.5 to 97 percent of child cases, though most advocates weigh in at 40-60 percent. Sharwline Nicholson, who’s been talking to many women with children in the system, believes domestic violence is nearly always a factor in removal, even if the children are removed for drug use or genuine neglect: “Domestic violence is embedded. It’s in there somewhere.”
One might assume, then, that workers in child protection agencies are trained often and deeply in the dynamics of domestic violence, so as better to serve such families. But until recently, many child protective agencies saw battered women–and their advocates–as the enemy.
New York City’s ACS was created after the 1995 death of Elisa Izquierdo, who was killed by her battered, crack-addicted mother despite positive assessments by what was then the Child Welfare Administration. In January 1996 the new agency, with Nicholas Scoppetta at its head, promised a new era for children. One of its operating principles was that “any ambiguity regarding the safety of the child will be resolved in favor of removing the child from harm’s way.” The agency drilled this mandate into the heads of ACS’s frontline workers–most of whom are in their early 20s and arrive at their positions with a BA and less than a year’s training–and told them they need a court order to remove children except in cases of “imminent danger.” But that last phrase has allowed them the discretion to remove children without checking in with a judge, a domestic violence expert or even a supervisor.
When Nicholson was battered that winter night, they could have asked her where Barnett lived, if he had keys to the house (he didn’t) and what she needed to stay safe. They could have helped Nicholson file a protective order against Barnett, or done it themselves on behalf of the children. But none of this was done. No one even listened, a few weeks later, when she told her caseworker that she hadn’t been able to get an order since she didn’t know his address. They ignored the fact that Barnett wasn’t coming back and insisted that Nicholson agree not to go to the only home she had. Her children were leverage to get her to agree to their prescriptions. In Weinstein’s courtroom, child protection manager Nat Williams testified that he’d kept the children from Nicholson in the hope that “once she got before the judge, that the judge would order her to cooperate.”
In many ways, the pattern of abuse by ACS and other child protective agencies is a sign of a campaign that backfired.
“Domestic violence advocates have been saying for twenty years, what about the children?” says Alexandria Ruden, staff attorney at the Legal Aid Society of Cleveland and one of the authors of the Ohio Domestic Violence Law. Numerous academic studies, education campaigns and trainings have emphasized the idea that domestic violence has a detrimental effect on children living in the household. The hope, of course, was to get child-focused legislators and bureaucrats to take the issue seriously, and perhaps to enlist the powerful child-welfare apparatus on behalf of the woman, to protect the entire family from violence. The intent was not to generate a punitive response by the very institutions set up to provide assistance.
These campaigns were heard, all right–but in a way that abuses battered mothers instead of helping them. “In a way, these folks are doing what we told them,” says Ruden.
Child protective workers have over and over again focused on what the mother should be doing, and responded punitively if she did not meet their expectations, instead of targeting the batterer. In Florida, after 6-year-old Kayla McKean was beaten to death in 1998, the state legislature passed one of the twenty-three “child witness” laws in this country. As a result of “Kayla’s law,” when an order of protection is filed, judges commonly notify the Department of Children and Family Services. This could have prompted any manner of creative solutions; by the time the law passed, there was an extensive shelter network and a great deal of expertise in response to domestic violence available to the department. Instead, there are numerous reports of child protective workers saying to mothers, “If you don’t go to the shelter, we’ll take your kids,” according to Robin Hassler Thompson, of the Florida Coalition Against Domestic Violence, who said she was thrilled to hear of the Weinstein decision. “I said to myself, there are parallels here.”
The same sentiment was echoed in Ohio by Ruden, who has already given copies of the decision to the Ohio Department of Children and Family Services, which was already in the process of developing a protocol on domestic violence.
“Judge Weinstein underscored the basic constitutional principles behind this suit,” says Lois Weithorn, professor at Hastings Law School, whose article “Protecting Children From Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes” was published in the November 2001 issue of the Hastings Law Journal. “The Supreme Court has stated over and over again that parents have the right to their children without government interference, unless it’s absolutely necessary. Weinstein showed that reflexively removing children from the non-violent parent is a violation, and that ACS had not shown it to be necessary.”
These advocates are also hailing Weinstein’s section on “best practices,” where the judge outlines clearly and thoughtfully what he thinks the agency should be doing instead. Drawing on experts such as Jeff Edleson and other authors of what’s known in the field as the “Green Book,” a publication of the National Council of Juvenile and Family Court Judges, he directs ACS to operate on the principle that the best way to protect the child is to protect the mother–which is to hold the batterer accountable while offering the mother the constellation of services she needs, from housing to job training to childcare. All of the above, of course, require help from myriad agencies, from police to school systems.
Weinstein’s orders to ACS–that separation of battered mothers and their children should be an alternative of last resort, only after the agency has acted to protect mothers; that agency employees need to be trained in domestic violence; and that frontline caseworkers need clear guidance on the issues–are not simply suggestions. They have the force of law.
Since the lawsuit was filed, ACS has issued memorandums barring the use of the term “engaging in domestic violence,” begun consulting with national domestic violence experts and increased by a few days the amount of domestic violence training mandated for frontline workers.
Still, ACS is now appealing the case to the Second Circuit Court of Appeals, citing a handful of state studies (challenged by Zuccardy in court) that suggest there were fewer illegal removals than Weinstein claimed. “They don’t get it,” says Jill Zuccardy of Sanctuary. “To prove constitutional violations, you only need one case. And we have so many more than one.”
Weinstein granted a six-month stay in December in order to give ACS a chance to put an end to the constitutional offenses voluntarily by accelerating the domestic violence initiatives already in place. On June 20, as the stay expired, Weinstein refused a request to extend it for another three months, pending a possible settlement. He read aloud bits of ACS’s monthly reports, finding “no indication…that anything has been done except with respect to talk about” change. The Second Circuit is now considering the defense’s request to extend the stay until the full appeal is heard in December; they may also let the judge’s order go into effect at any moment.
As Weinstein pointed out, ACS needs to go back to the future: In 1993 the agency’s “Zone C Project,” in a target area in Manhattan, screened all child welfare cases for domestic violence and teamed caseworkers with domestic violence experts. The number of removals dropped dramatically. But before this program could be replicated, Elisa Izquierdo’s death transformed the culture of the organization.
It was six years before they tried again in Manhattan’s “Zone A,” where the program had the benefit of more experience and coordination with police. Weinstein noted, “The batterer was arrested in 50 percent of the cases–a considerable increase–and an order of protection was provided to the victim in 42 percent of cases–also a large relative increase. The need for removals dropped dramatically; protective removals occurred in only 3 percent of cases–a substantial decrease.” Yet the project was allowed to die, its practices incorporated only very slowly into ACS’s new protocols and the “clinical consultation teams” they hope to activate this summer.
Other states have recognized the limits of what child protective agencies can do alone, with Minnesota modifying a strict “child witness” law that flooded its foster care system and Alaska pulling in all agencies to work on the problem together. It’s promising that ACS is now consulting the Family Violence Prevention Fund, a national model in which domestic violence experts routinely train caseworkers and serve as a resource for battered women who enter the system. They might also look to the six Green Book demonstration projects across the country, such as San Jose’s Domestic Violence Council, or to Judge Cindy Lederman’s Dependency Court Intervention Project in Miami, which re-envisions how a family court can help.
All these solutions are expensive, at least at first, especially if you include the supportive resources battered women desperately need. But advocates point out that foster care is expensive too, let alone the long-term costs of incarceration as traumatized children grow into frustrated adults.
While ACS is happy to report its new initiatives, what’s still unclear is whether the changes will penetrate to the frontlines. The core question for the agency: How high a percentage of its $2.1 billion budget is it willing to spend training frontline workers, and how much clout is it willing to give in-house domestic violence experts? Meanwhile, will New York State finally address the compensation of Family Court attorneys, currently the second lowest in the country?
Weinstein has now set the bar high for giving poor families in this country simple justice. The hope is that despite the turf battles large and small, the political will to implement these solutions will be found.
As for Sharwline Nicholson, she’s on the board of the Child Welfare Organizing Project, a New York group founded to strengthen the client voice in the child welfare system; speaks at seminars of attorneys concerned about domestic violence; and plans to pursue a master’s in social work. “I always knew I wanted to write a book someday,” she says. “I just didn’t know it would be this book.”