Family Courts and Foster Care Destroying Communities Of
Color Even More Then Police Brutality?
By Woody Henderson
is, "Do you have to tell someone that you are declaring
war on him or her before you declare war on them?" If
the answer to that question is no, then perhaps there
are those in this society that have already declared war
on people of color. While people of good will are justly
focused on bringing a end to police brutality and murder
of unarmed innocent people of color in general, and black
men in particular there is something even more sinister
taking place in our communities.
Some of the
institutions paid to protect and serve communities of
color are implementing and carrying out policies that
are having a devastating affect on the very ones they
are mandated to serve. The Administration for Children's
Service's, (ACS) New York City's child protective service,
is one such institution.
In the name
of protecting children at risk ACS and child protective
agencies around the country, are destroying many of them,
armed with the help of a police force, some unjust and
unconstitutional laws and a philosophy of, "When in doubt
take them out." Too many children of color are ripped
from their parents loving arms by police officers and
caseworkers, while screaming "mommy, mommy please don't
let them take me. In some cases it has been reported that
the children are forced to watch their parents being beaten
to the floor, handcuffed and dragged off to prison. All
of this based too often on hearsay and false allegations.
In the meantime ACS gets billions of dollars from the
government, which it uses to finance the unconstitutional
removal of children from their families, and their subsequent
placement into foster care agencies that are subcontracted
to subcontract out the children they remove. These foster
care agencies are paid about $42,000 per child, per year,
based on a per-diem, there by removing the incentive to
expeditiously reunify the child with it's family.
It's conception ACS has been the most devastating and
destabilizing force to be sent into communities of color,
in the name of protecting children since the days of slavery.
This is happing in communities all across this country
even though the US Court of Appeals of the Second Circuit
ruled it is unconstitutional to removed children from
their homes without first obtaining a court order unless
there is an imminent risk of harm. Yet, the Giuliani administration
in New York City refuses to comply with that ruling.
Let's take a look at what's really happening, but first
let me say unequivocally, we recognize the immense and
difficult task that ACS and child protective agencies
are faced with on the issue of child neglect and abuse.
We are aware and are deeply concerned about children that
are being abused or neglected and we totally recognize
the need for an agency that provides protection and a
safe place for children at risk. However, many problems
exist in these agencies and the Family Courts.
Take a look at some of the facts and statistics that are
so adversely affecting communities of color around the
issue of foster care. We understand that the Adoption
and Safe Family's Act (ASFA) was meant to be in the best
interest of the child. However, in many cases it is having
an unbridled affect on far too many of the children and
families it was designed to protect and provide for.
Over the past two years a number of cases have appeared
in newspapers, magazines, on radio and TV. These cases
included stories of children being molested, raped, sodomized,
and physically abused, mentally, emotionally and educationally
neglected, and yes even killed while in the care of ACS.
and child protective agencies around the country. Children
have been mistakenly removed from their homes and loving
families due to false accusations and unfounded charges
of neglect and abuse. ACS and other child protective agencies
have become a nightmare to many of the children they are
mandated and sworn to protect, and not only a nightmare
for the children they remove, but for the child's entire
number of lawsuits were filled over the past two years
in New York by Children's Rights INC, People United for
Children and others. Yet, ACS has continued to operate
from a self-imposed policy of "When in Doubt Take Them
Out." It would seem to a logical and fair-minded person
that their policy should more justly read "When In Doubt
Find Out." Since the beginning of 1999, there has been
a string of cases reported by NBC's Dateline, Glamour
Magazine, ABC News, the New York Times, The Amsterdam
News, and too many others to mention. It is in part due
to these stories and the misrepresentation of facts and
figures by New York's Mayor Rudolph Giuliani, and Commissioner
of ACS Nicholas Scoppetta's, failure to implement changes
in the operating procedures of ACS and the foster care
system that the need to write this article exist.
The problem is as simple as, is the glass half full or
half empty?" Those who make the policies and rules that
govern the operating procedures of ACS don't have to suffer
the consequences of those polices. In NYC, over 97% of
the children removed by ACS are African American or Latino.
One of the misleading claims we hear from Mayor Giuliani
is that children are staying in foster care for shorter
periods of time because the number of adoptions in foster
care are up. This at first sounds like a good thing but
when you take another look at the glass, you see a different
picture. What you see and don't hear is the number of
children in foster care who are being reunified with their
families is down. Yet the primary objective of child welfare
is the reunification of children and families. If you
check the figures you will find a direct correlation between
the increase in adoptions and the decrease in children
being reunified with their families not to mention the
obstacles placed in the way of kinship care.
Mayor Giuliani says the number of children in foster care
in NYC is down by 30% since 1991. This is a gross misrepresentation
of facts and figures. Since the mayor appointed Nicholas
Scoppetta, Commissioner of ACS in 1996, the number of
children removed from their homes and placed into foster
care increased as much as 52%. During the first two years
of Mr. Scoppetta's tenure the number of removals increased
from 8,770 in 1995 the year before Mr. Scoppetta was appointed
commissioner to 12,042 in 1997. In 1999 that number had
decreased to 10,200, which is still a 25% higher rate
of removals than the year before he became commissioner
in 1996. This brings us to our point. The unconstitutional
and unjust reasons used to remove many children from their
homes 75% of who are low risk cases and 85% of them are
removed without a court order.
of the problem lies in the fact that ACS's management
tells its employees that they don't need to secure court
orders before removing children from their homes or schools.
This is endorsed by the Family Court's willingness to
issue those court orders after the fact, in spite of their
having been no immediate or imminent risk of harm. Once
a court order is in place delays in the family court system
These delays are often caused by overburdened caseworkers
with too many cases, which contributes to their inability
to expeditiously and accurately conduct investigations
and complete evaluations. At the same time these lengthy
delays and postponements are taking place, the parents
are treated as if they are guilty of the allegations.
They must in many cases, prove themselves not guilty of
hearsay, anonymous or unfounded charges and false reports
made by people who don't even have to come into court
to face the person whom they are accusing. If a judge
by law has to accept hearsay of a third party who may
or may not have accurately reported the charge to the
caseworker who reports it to the judge, at best the judge's
chances of making a just decision is fifty-fifty. It follows
then his decision may only be in the child's best interest
fifty percent of the time.
Remember, 75% of the children who are being removed from
their homes by ACS are by ACS's own account, are low-risk
cases, in other words cases where there is and was no
immediate risk of harm. Many of these children's parents
fight tirelessly to reverse this injustice in a court
system that is not designed for them to negotiate. Another
contributing factor to this problem is due in part to
poor representation by court appointed (18-B) lawyers,
with too many cases, too little pay and too much pressure
to complete paper work and evaluations on cases they don't
have ample opportunity to investigate.
lawyers, judges and caseworkers also often have a poor
understanding of cultural differences, which may have
lead to different parenting styles than that accepted
by current police. The cards are so unfairly stacked against
children and their families in the present system it is
no wonder 75% of the children in foster care end up in
penal institutions. That and the reality of a parent not
knowing where or who their child is with at night, or
if they are being properly cared for causes undo physiological
stress, loss of jobs and even homes of many of the parents
who find themselves caught up in this nightmare.
Many of the children removed are removed against their
wishes and are not allowed to speak in court on their
own behalf, although they are often nine, ten, eleven,
twelve, thirteen, fourteen and even fifteen year-olds.
Some of them beg their foster parents and law guardians
to return them to their loving families. However, in many
cases law guardians and judges who act as if they have
the wisdom of Solomon make decisions to keep the children
separated from their parents and siblings, while not allowing
the children to speak in court. I have, on more then one
occasion, heard judges compare themselves to Solomon when
it comes to making decisions involving a child's welfare.
It doesn't seem logical, or fair to consider hearsay but
not the statements and opinions of the one most affected
by the decision to remove the child, the child himself.
This is especially true in cases where abuse is not alleged.
Not to allow a child to speak on his or her own behalf
is much like asking that child; to jump out of an airplane
without a parachute when there is one available. When
one considers or combines the attitude of the caseworker,
the child's law guardian and the family court toward the
parent, one can conclude that the system is more focused
on punishing the parent than providing for the best interest
of the child. We would like to see a commitment to protect
and provide for children who are at risk be as strong
and committed for those in the system as that for those
in their homes.
Many advocates and parents agree. ACS and the family court
don't take into account a very real fact as established
by top psychologist across this country. That fact is,
removing a child from his or her parents causes emotional
damage which is sometimes irreversible to the child and
is in many cases even more damaging than the circumstances
from which the child is being removed. Many of these cases
could better be dealt with by supplying food or clothing
or helping to upgrade the living conditions and or shelter
for far less than the forty plus thousand dollars per
child provided to the foster care agency per year. Since
they are paid on a per diem there is no incentive to the
foster care agency to expedite the reunification of child
For every extra day a child is kept by an agency there
are extra dollars to be made. While this is taking place
the children in New York are lingering in foster care
at a rate about twice the national average. Meanwhile,
the "termination of parental rights" clock is ticking.
October 13, 1999, The U.S. Court of Appeals, of the Second
Circuit ruled, "It is unconstitutional for the Administration
for Children's Services to remove children from their
parent's custody without a court order unless there is
an imminent Risk of Harm. This would more justly read
"immediate Risk of Harm," because "imminent risk" is too
generic a term. It can and is being too loosely applied
to fit any given caseworkers interpretation of Webster's
many definitions of the word "imminent" Management and
caseworkers at ACS still to this day insist they do not
have to abide by that October 13, 1999 ruling.
By obeying the constitutionality of that ruling, and returning
children that were removed in violation of it would reduce
the workload that is said to be bogging the system down.
It would also free caseworkers and social workers to focus
more time and energy on children that are truly at risk.