United States District Court, Eastern District of New York

“ The government's responsibility to protect victims of domestic violence — or at least not to punish them — is particularly poignant given that the state will punish the woman who takes the law into her own hands and attacks her former batterer. It is a long held maxim that the state holds a monopoly on violence, and that unauthorized acts of violence will go unpunished only under special circumstances, such as self-defense or insanity. ”

“ The Supreme Court's recent suggestion that any legislative or policy infringement at all of a fundamental liberty interest triggers strict scrutiny suggests that the Joyner test - which demands a showing of significant infringement, requires only a substantial rather than a compelling state justification, and apparently places no requirement on the state to narrowly tailor its policies to its goals, may no longer be completely serviceable in a case such as the one we now face - a policy of taking children from their mother because she has been abused. ”

“ When agencies remove children from battered mothers, they put the mothers in a terrible dilemma. Dr. Stark testified that when a mother believes that if she reports domestic violence her children's well-being will be endangered because they will be removed from the home and put in foster care, then she is unlikely to report the violence until it reaches an extreme level where public notice is unavoidable. As a result agencies that remove children from battered women aggravate the occurrence of domestic violence by discouraging women from reporting it at early stages. ”

“ One interpretation of the substantive due process familial rights cases, up to and including Troxel, would be that the state's interest in protecting and promoting child welfare is so compelling that strict scrutiny is inappropriate because, if applied as it has been traditionally, it might limit too greatly the state's power to protect children. Thus, where the fundamental right of a parent against state interference is pitted against society's equally fundamental obligation to protect the innocent and vulnerable from harm, some flexibility is required to prevent deadlock. ”

“ When domestic violence creates an immediate danger of serious physical harm or serious emotional impairment to a child, every effort should be made to provide for safety without separating the non-abusive parent and child. If preventative services cannot effectively curtail domestic violence within the household, the abusive partner should be removed from the home by the police, or the non-abusive parent should be assisted in entering emergency shelter or another safe living situation with her child. ”

“ The evidence demonstrated that the City's practices and policies in this field harm children much more than they protect against harm. The children suffer the trauma of being separated from both of their parents, blame themselves for the abuse of their mothers, confront an unfamiliar and often dangerous foster care system, while all the time their mother could likely be giving them care and comfort if only ACS, with the cooperation of other city agencies, would carry the government's own burden of protecting her from violence. ”

“ The exact language of the Thirteenth Amendment could be construed to cover children forcibly and unnecessarily removed without due process and then consigned to the control of foster caretakers. They are continually forcibly removed from their abused mothers without a court adjudication and placed in a forced state custody in either state or privately run institutions for long periods of time. There they are disciplined by those not their parents. This is a form of enthrallation that bears on their due process rights under the Fourteenth Amendment. ”

“ Concerned about the risk adult domestic violence poses for children, some child protection agencies in the United States appear to be defining exposure to domestic violence as a form of child maltreatment.... Defining witnessing as maltreatment is a mistake. Doing so ignores the fact that large numbers of children in these studies showed no negative development problems and some showed evidence of strong coping abilities. Automatically defining witnessing as maltreatment may also ignore battered mothers' efforts to develop safe environments for their children and themselves. ”

“ Best Practices Failure to follow best practices is not unconstitutional. It does bear, however, on the justifications of ACS that its punitive attitude towards battered women is required by social service standards and that it serves children's best interests. The court's understanding of best practices for dealing with the intersection of child maltreatment and domestic violence has been greatly aided by the opinions and reports of plaintiffs' and defendants' experts, all of whom are highly qualified in their fields. ”

“ Juvenile court jurisdiction should be established on the sole basis that the children have witnessed domestic violence only if the evidence demonstrates that they suffered significant emotional harm from that witnessing and that the caretaker or non-abusing parent is unable to protect them from that emotional abuse even with the assistance of social and child protection services. ”

“ Stark testified that removing the child from the mother may be more damaging to the child than doing nothing at all and that the "general opinion in the field and the best practice recognizes that the single most effective strategy in protecting children in homes where there is domestic violence is removal and sanctioning of the offending party." ”

“ There is a "private realm of family life which the state cannot enter. But the family itself is not beyond regulation in the public interest ... and neither rights of religion nor rights of parenthood are beyond limitation. ”

“ As part of their mental abuse, many fathers will tell a woman that if she seeks help to escape the home, the system will turn against her, that she will be blamed for the break up of the family, that she will lose everything and that the abuser will get away with everything because he is in control - the system often perpetuates this belief and reinforces to women that they are powerless and will be punished, no matter what they do. ”

“ If the danger to the child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization, ex parte or otherwise, for the child's removal, then the circumstances are not emergent; there is no reason to excuse the absence of the judiciary's participation in depriving the parents of the care, custody, and management of their child.
Tenenbaum, 193 F.3d at 594. The court emphasized that " [e] mergency circumstances mean circumstances in which the child is immediately threatened with harm. The mere possibility of danger is not enough." ”

“ Offering counsel to a mother accused of neglect, and then hamstringing that counsel in such a way that the mother is likely to receive inadequate representation impairs the litigant's Sixth Amendment right to effective counsel. Creating a system of appointed counsel that is so ineffective that the entire court system becomes plagued with long and unavoidable delays, so that urgent claims of violations of constitutional rights go unaddressed for months, impairs subclass A members' due process as guaranteed by the Fourteenth Amendment. ”

“ No finding is made that reasonable compensation is always due appointed counsel. Courts have recognized that lawyers are officers of the court owing a duty of public service, and that it does not violate the lawyer's constitutional rights to be compelled to represent indigent clients without compensation. ”

“ Even ACS has at times indicated an understanding that accusing a battered woman of neglect is bad policy. A draft of the Division of Child Protection Domestic Violence Evaluation, dated September 14, 2001, suggests that while it may be desirable to hold batterers accountable by charging them with neglect when children witness domestic violence, charging the battered mother "further victimizes the non-offending parent." ”

“ The battered mother ... may easily be engaged and seen as the parent who is more willing and interested in complying with services to prevent removal of her children or to get them returned from foster care. This creates a situation in which a child welfare case is opened due to the father's beating of the mother in the presence of the children, and she is sent for domestic violence education, parenting classes, individual counseling, and drug testing, among other possible referrals. ”

“ Mothers Should Not Be Accused of Neglect For Being Victims of Domestic Violence The National Council Guidelines suggest that child welfare services sometimes blame victimized mothers for "failure to protect" children because of the "system's inability to hold the actual perpetrator of violence accountable." ”

“ C. Inadequate Representation The record proves that representation of counsel of abused mothers is largely a sham. The 18-B attorney system as now organized and financed holds out the promise to an abused mother that she will be properly represented by a competent attorney when she seeks to retain or obtain the return of her children illegally seized by ACS. It then cruelly supplies attorneys who can not, and do not, properly represent her. They do not investigate. They do not consult with their client. ”

“ The mothers' interest in family integrity and care of the children is strong. It is especially potent because most mothers are justifiably extremely concerned about the well-being of their children, who are at increased risk psychologically and physically while in foster care. Relationships between mothers and children from homes with domestic violence may already be adversely affected. Abused mothers have a strong interest in avoiding further trauma to the familial bonds that would result from months of separation. The government's interests are particularly weak ”

“ Groves testified that the degree to which a child may be affected by domestic violence is related to the child's age (younger children are more vulnerable) , the frequency and content of what the child saw or heard, the child's proximity to the event, the victim's relationship to the child, and the presence of a parent or a caregiver to mediate the intensity of the event. ”

“ Fourteenth Amendment The Due Process Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." ”

“ See A Growing Crisis at 16 (One reason that scarcity of assigned counsel for Family Court is "a matter of paramount concern" is because, " [w] hen counsel is not assigned to represent indigent petitioners in family offense cases, victims of domestic violence must make critical decisions on their own that may affect their future physical safety.") . Separation of mother and child may place the child in dangerous conditions - or at least give justifiable rise to such a fear in a mother. ”

“ They explain that
[b] laming a battered mother for being abused, for not leaving the domestic violence perpetrator, or for not stopping his violence is simply counterproductive. The battered woman cannot change or stop the perpetrator's violence by herself. If she does not have adequate support, resources, and protection, leaving him may simply make it worse for the children. ”

“ The government must be able to show "an objectively reasonable basis" for deciding the child is immediately threatened with harm to justify removal from the mother without prior judicial authorization. ”

“ There are a wide variety of services from which to choose in New York City. See, e.g., Mayor's Commission to Combat Family Violence, The City of New York Resource Directory of Domestic Violence Services (2001) (listing over 150 organizations in New York City that may be of assistance to a domestic violence victim) . It is crucial to choosing the right services and crafting effective plans that the adult *203 victim be given a central voice in safety planning for herself and her children. ”

“ Requiring counsel to always work without adequate compensation by creating a system in which they cannot practice privately at all may so egregiously "jeopardize [lawyers'] personal finances," Williamson, 674 F.2d at 1216, as to trigger due process concerns on behalf of counsel. None of the court's holdings are based on any rights that may be claimed by counsel. The court is at present concerned only with the rights of mothers to effective counsel. The evidence is overwhelming that the 18-B system deprives them of that right. ”

“ The State's officials remain defendants on the theory that it is the State which sets 18-B rates.
It is doubtful whether the named defendants can themselves raise the rates without legislation. The City can pay more to the extent that the State limitations are found to be unconstitutional. As applied to the separation of an abused mother and child, the State statutory 18-B limitations are unconstitutional. The duty remains on the Family Court under the separable 18-B statute to supply counsel paid by the City at rates sufficient to obtain competent attorneys for abused mothers. ”

“ Often the paradigmatic mother-child separation is preferred by ACS employees.
ACS approaches safety planning as a prescriptive process in which ACS offers services that the mother is expected to accept. Refusal to accede without objection is often interpreted by ACS as the mother's refusal to protect her children. In fact the mother often refuses because the plan or an element of the plan is unnecessary, fails to address the family's problem realistically, or actually increases the danger. ”

“ This is a Domestic Violence Case. The Mother must be an active participant in trying to help herself and her [child] . She needs to get her husband help. In the meantime she must remove herself from the situation. She can do this by going to a domestic violence shelter or calling the police. In any event if she shows us that she is not willing to take an active role in protecting her [child] we will deem this neglect on her part. Interview all parties and offer substance abuse counseling to the father... ”

“ Stark's research at Yale New Haven Hospital revealed that "in the vast majority of cases" where a mother was battered and a child was maltreated in a home, the man who battered the mother was also the source of child abuse or neglect. Tr. 1546. In other words, the "man hits wife, wife hits child" scenario is rare; abuse tends to flow from a single source. Tr. 1546-47.
In a 1999 study by Jeffrey L. Edleson surveying existing research on how children respond to witnessing domestic violence, he addressed how this evidence should influence decisions about child maltreatment. ”