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NICHOLSON v. WILLIAMS
March 18, 2002
SHARWLINE NICHOLSON, INDIVIDUALLY AND ON BEHALF OF HER INFANT CHILDREN, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, AND J.A. AND G.A., INFANTS ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS
NAT WILLIAMS, ET AL. DEFENDANTS. EKAETE UDOH, INDIVIDUALLY AND ON BEHALF OF HER INFANT CHILDREN, AND J.A. AND G.A., INFANTS ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS V. NICHOLAS SCOPPETTA, ET. AL. DEFENDANTS. SHARLENE TILLETT, INDIVIDUALLY AND ON BEHALF OF HER INFANT CHILDREN, AND J.A. AND G.A., INFANTS ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, V. NICHOLAS SCOPPETTA, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Weinstein, Senior District Judge.
Supplemental Memorandum, Findings of Fact and Law, and
The evidence reveals widespread and unnecessary cruelty by
agencies of the City of New York towards mothers abused by their
consorts, through forced unnecessary separation of the mothers
from their children on the excuse that this sundering is
necessary to protect the children. The pitiless double abuse of
these mothers is not malicious, but is due to benign
indifference, bureaucratic inefficiency, and outmoded
The term "mother" includes other legal or actual custodians of
children; it usually is a female, but in relatively rare cases,
the abused custodian will be a male. The abuser is usually a
member of the household, such as a husband, paramour, father of
the children, or person having had such a relationship with the
mother in the past.
In a heterogeneous, non-theocratic and democratic society such
as ours, there is enormous diversity in domestic relationships
and in the degree that they are founded on mutual respect and
love (the norm) or malevolence. Particularly if there is a
sexual relationship between the adults, the emotional
interaction may be intense, sometimes flaring into psychological
or even physical abuse. The abuse may be endemic. It may be
directed against the children as well as the mother. The
children may be indirectly affected, as when they observe an
abusive incident. Even when the abuse is not physical, it may be
so fierce as to be the equivalent of a beating. See Poppe v.
Poppe, 3 N.Y.2d 312, 165 N.Y.S.2d 99, 144 N.E.2d 72, 75 (1957)
(Fuld, J.) ("statements made . . . may have an effect no less
cruel and no less destructive of the marital relation, though
their impact be upon the mind and spirit rather than the
body."). The mother may lack the ability or resources to either
protect herself or the children. Economic, emotional, moral or
other ties may, as a practical matter, prevent the mother from
separating from the abuser or seeking governmental protection
against him. She may hope for eventual reconciliation — and
sometimes it does occur. Myriad subtle reasons may prevent her
from separating from the abuser, protecting the children, or
seeking assistance. In some households ethnic or social mores
are relied upon to justify abuse as a "traditional right."
Ability to deal with tensions induced by self, a partner,
children, and economic and social factors varies enormously
among those who become embroiled in domestic violence. In short,
this case presents the most intricate and recondite
relationships, the stuff of thousands of novels, poems,
newspaper accounts, and legal proceedings.
Whatever the explanation, physical abuse of mothers and
children, or the imminent threat of such ill treatment, is not
tolerated in our American society. Whether the mother, the
family, or the immediate social group accepts cruelty as the
norm or as permitted, it is a minimum assumption of our
twenty-first century United States that it will not be
tolerated. The government has the obligation to stop it and to
prevent its recurrence whenever it can.
In April 2000, Sharwline Nicholson filed a complaint on behalf
of herself and her
two children, Destinee Barnett and Kendell Coles, against
officers and employees of the Administration for Children
Services and the City Of New York ("City defendants"). A few
months later, Ekaete Udoh filed a similar action on behalf of
herself and her four children, Edu, Ima, Nsikak, and Asuno. On
November 20, 2000, a complaint was filed by Sharlene Tillett on
behalf of herself and her two children, Winston Denton and
Uganda Gray. City defendants answered and discovery commenced.
In January 2001, plaintiffs moved for class certification.
Fed.R.Civ.P. 23. In view of a potential conflict between the
interests of the children, the battered mothers, and alleged
batterers, the court ordered creation of a subclass of children,
subclass B, and appointed counsel for this subclass. The mothers
were organized into subclass A and were represented by their
original counsel. The court announced by published memoranda and
advertising that it was prepared to recognize a subclass of
alleged batterers who might have an interest in not being
separated from the children or the mothers; no representatives
came forward and the court determined that the case could
proceed effectively without this potential subclass. New
representative plaintiffs were added or substituted.
A next friend was appointed to protect the interests of the
children. Various friends of the court participated in the
Sometime after the case had been pending subclass A amended
the complaint to state a cause of action against the State of
New York and some of its officials. The State itself was
dismissed on consent.
In June 2001, the court directed the parties to submit briefs
on whether a preliminary injunction was warranted. That month,
plaintiffs moved for a preliminary injunction against City
On July 9, 2001, a trial began on whether class certification
was appropriate and whether and in what form a preliminary
injunction should issue. The trial lasted for twenty-four trial
days, forty-four witnesses testified, 212 documents were
introduced, and extensive briefing and argument followed. After
the trial concluded at the end of December, following further
briefing and documentary supplementation of the record, a
memorandum and preliminary injunction were issued. 181 F. Supp.2d 182
(E.D.N.Y. 2002). Operation of the injunction was stayed
until June 22, 2002, except for the requirement of monthly
reports from the City defendants on the steps they were taking
to protect the subclasses' rights. This present memorandum
further explicates the reasons for the preliminary injunction.
A. Current Institutional Framework
Responsibility for governmental protection of children rests
primarily on the state or municipality. See, e.g., Lois A.
Weithorn, Protecting Children from Exposure to Domestic
Violence: The Use and Abuse of Child Maltreatment Statutes, 53
Hast. L.J. 1, 19-26 (2001) (various forms of direct state
intervention in child abuse and neglect matters). The federal
government assists with statutory protection and funds. See,
e.g., Child Abuse Prevention and Treatment Act ("CAPTA"), P.L.
93-247, 88 Stat. 4 (1974), amended by P.L. 104-235, 110 Stat.
3063 (1996) (CAPTA provides federal funding to states, provides
grants to public agencies and nonprofit organizations,
identifies the Federal role in supporting research, establishes
the Office on Child Abuse and Neglect, and sets forth a minimum
definition of child abuse and neglect.).
The State of New York has enacted laws aimed at protecting
children from abuse and neglect. See, e.g., N.Y. Fam. Ct. Act
§§ 1011-1121 (Consol. 2001) (Family Court's civil jurisdiction
to protect children from abuse and neglect); N.Y. Penal Law §
260.10(2) (Consol. 2001) (abuse or neglect of a child is a
misdemeanor). A state agency, the Office of Children and Family
Services ("OCFS"), regulates and monitors local service agencies
and maintains the State Central Register for Child Abuse and
Maltreatment ("SCR"). The State largely delegates responsibility
for enforcing child protection laws to counties and
municipalities. In New York City, the primary responsibility for
protection of children against abuse is assigned to the
Administration for Children's Services ("ACS"). It is assisted
by such agencies as the Family Court, District Attorneys'
offices, the City Police Department, and many public and private
1. Reports to the State Central Register
SCR serves as the conduit through which all investigations of
child abuse and neglect are initiated. Tr. 1130. SCR maintains a
telephone hotline with a toll-free number, staffed twenty-four
hours a day, seven days a week, to receive information about
child abuse, child neglect, or child maltreatment. N.Y. Soc.
Serv. Law § 422(2)(a) (Consol. 2001). Anyone who believes a
child is being abused or neglected is free to report to SCR.
Individuals in specified positions and professions such as
health care professionals, school officials, social services
workers, day care center employees, and law enforcement
personnel are required by law to report such suspicions to the
SCR. Id. §§ 413, 414. A person who makes a report is immune
from liability even if the report is eventually proven false,
unless it was made in bad faith. Id. § 419.
SCR screens reports it receives to ensure that the allegations
and identifying information are sufficient to begin an
investigation. Id. § 422(2)(b); Tr. 673, 684-85. If the report
passes this initial screening, SCR transmits the report as well
as any background information to a field office in the county
where the child is located. Tr. 673. The Administration for
Children's Services (ACS) is responsible for investigating
reports involving children in New York City. There is an ACS
field office in each of New York City's five boroughs.
When an ACS field office receives a report from SCR, an
applications worker forwards it to a Supervisor II
("Supervisor"). The Supervisor assigns a Caseworker to
investigate. A Child Protective Manager ("CPM") oversees the
Supervisor-Caseworker team and approves major decisions such as
removing a child or prosecuting a mother.
ACS is responsible for completing its investigations of
complaints referred by SCR within sixty days. Id. §§ 424(6),
424(7). When the investigation is completed, ACS must determine
whether there is "credible evidence" to support the allegations.
If ACS concludes there is such evidence, it declares the report
"indicated." Otherwise, it declares the report "unfounded."
N.Y.S.oc. Serv. Law §§ 412(5), 412(6), 424(7) (Consol. 2001). ACS
transmits its conclusions and supporting reasons to SCR. Id. §
424(3). Neither the SCR nor any other State department
independently assesses the ACS conclusion.
A report of "indicated" can have severe consequences. While
SCR is required to keep report records confidential, many
individuals and organizations are statutorily authorized to
access the records. Id. § 422(4)(A). For example, when a
person seeks a job that involves working with children, the
employer must inquire of SCR (and SCR must respond) whether the
parent is the subject of an indicated report. Id. § 422(4)(A).
Such an employer may not hire an applicant who is the subject of
an indicated report unless it submits a written statement
explaining why they are hiring a person who has reportedly
neglected her own children to work with other people's children.
Id. § 424-a(2)(a); Tr. 1056 (ACS employee testifying that
being the subject of an indicated report will make obtaining
employment in certain capacities more difficult); Ex. 189.
2. Child Protective Proceedings
ACS has discretion to commence child protective proceedings
against the parents in Family Court during the investigation, or
after the investigation if the report is determined indicated.
N.Y. Fam. Ct. Act § 1032(a) (Consol. 2001); N.Y. Soc. Serv. Law
§§ 397(2)(b), 424(11) (Consol. 2001). As the petitioner, ACS
prosecutes actions brought in Family Court. N.Y. Fam. Ct. Act §
1032(a) (Consol. 2001). ACS also has discretion to refer cases
to the District Attorney for investigation and possible criminal
prosecution. N.Y. Soc. Serv. Law § 424(11) (Consol. 2001). ACS
commences an action by filing a petition under Article 10 of the
Family Court Act. Its own attorneys draw up the petition after
consulting agency personnel.
Once ACS has filed a petition, the Family Court is required to
hold a preliminary hearing "as soon as practicable" to determine
whether the child's interests require protection pending a final
order of disposition. N.Y. Fam. Ct. Act § 1027(a) (Consol.
2001). The court has the power to order removal of the child if
that is necessary to avoid imminent danger to the child's life
or health. Id. § 1027(b)(i). Among other factors, the court is
to consider whether ACS made appropriate and reasonable efforts
to prevent or eliminate the need for removal. Id. §
1027(b)(i). The court also determines preliminarily whether
imminent risk would be eliminated by a temporary order of
protection directing the removal of a person or persons from the
child's residence; it is authorized to grant such orders by
section 1029 of the Family Court Act.
If it determines that there is not enough time to file a
petition and hold a preliminary hearing, ACS is authorized to
seek, and the Family Court to issue, a preliminary order of
removal. Id. § 1022. The court considers available protective
services, including the removal of offending persons from the
residence, in deciding whether to issue such an order. Id.
If a child is removed prior to a court order issued after a
hearing where the parents were present and had the opportunity
to be represented by counsel, the parents have the right to
apply for a court hearing to secure the child's return. Id. §
1028. This hearing is required to take place within three days
of the application. Id. The court must consider the same
factors, including services and orders of protection, as it does
at a removal hearing under sections 1022 or 1027. Id.
Instead of returning full custody of a removed child to a
parent, the Family Court may parole the child to the parent
pending the outcome of the proceedings. Parole is common. A
paroled child returns to live with the parent, but ACS is
usually given broad supervisory powers, including the right to
make unannounced home visits and to insist that the parents
participate in certain services. Tr. 351.
After provisional arrangements for the child have been
addressed, the court proceedings move to the fact-finding stage.
Often, several months will pass before a fact-finding trial is
commenced. The hearing itself may take months because of lengthy
adjournments. Tr. 334, 366. If, after this fact-finding trial,
the court makes a finding of neglect, a dispositional hearing
follows. Commonly, the entire process is very lengthy. As ACS
Commissioner Nicholas Scoppetta confirmed; "Once you are in the
Family Court, you are in it very often for many months before
you can get to the substance of the case. . . ." Tr. 2505.
Many cases never reach the dispositional phase. ACS often
engages in settlement negotiations with parents. A settlement
may involve the parents admitting to allegations in the
petition. It may include an adjournment in contemplation of
dismissal (ACD), adjourning court proceedings with the
understanding that ACS will agree to a dismissal of the petition
after a period of time, usually six to twelve months, during
which the parents must cooperate with ACS supervision and
fulfill conditions. Tr. 332-33.
A few instances will illustrate how the ACS system results in
the forcible and unjustified separation of abused mothers and
Sharwline Nicholson is a thirty-two year old working mother of
two. For the past two years, Ms. Nicholson has both worked
full-time as a cashier at Home Depot and taken classes full-time
at Mercy College, where she is pursuing a degree in Behavioral
Sciences. While she manages this busy schedule, Ms. Nicholson
has made arrangements for her children to be cared for. When she
is working, her son is in school and her daughter is at day
care. When she is at school, she takes her son with her and
leaves her daughter with a baby-sitter. Ms. Nicholson has lived
at the same address in Brooklyn for the past seven years.
Prior to an attack by Mr. Barnett on Ms. Nicholson in 1999,
ACS had only had contact with Ms. Nicholson once before. There
was a report that Mr. Barnett had struck Kendell in the face as
a result of a bad report from school; Kendell suffered a "sore
mouth" and had "slight marks on the lips." Ex. 190 at 101012.
ACS investigated the case and decided the report was indicated
as to Mr. Barnett, but was not indicated as to Ms. Nicholson.
Ex. 190 at 101015. ACS noted that "[Ms. Nicholson] seems very
attentive to child's needs. . . . He is receiving occupational
therapy, speech therapy, and counseling in school. [Ms.
Nicholson] feels that these services are adequate, and that
outside intervention is not necessary." Ex. 190 at 101013.
b. Domestic Violence Against Ms. Nicholson
Early in 1999, during one of his visits, Ms. Nicholson told
Mr. Barnett that she was breaking off their relationship because
they lived so far apart. Mr. Barnett, who had never previously
assaulted or threatened Ms. Nicholson, flew into a rage. He
punched her, kicked her, and threw objects at her. When he left,
her head was bleeding profusely.
Throughout the assault, Destinee was in her crib in another
room. Kendell was at school. After the attack, Mr. Barnett left
the apartment. Her head bleeding, Ms. Nicholson called 911.
Before the ambulance arrived, Ms. Nicholson asked her neighbor,
Anna Thomas, a baby-sitter who Ms. Nicholson had relied on in
the past, to care for her children while she was away at the
hospital. Anna agreed to pick up Kendell at his bus stop when he
returned from school.
At the Kings County emergency room, CAT scans and X-rays
revealed that Ms. Nicholson had suffered a broken arm, fractured
ribs, and head injuries. That evening, three police officers
came to visit her at the hospital. The officers told Ms.
Nicholson that, since she would be staying the night at the
hospital, it would be better if her children could stay with a
family member than with the babysitter. The officers asked Ms.
Nicholson for the names and phone numbers of any family members
that might be able to care for the children. Ms. Nicholson
complied, providing the officers with the numbers for two of her
cousins, Marcia Roseboro and Michelle Brown, and of Destinee's
godmother, Marleen Hickman. The officers also asked about Mr.
Barnett. Ms. Nicholson identified him from a photograph and
On January 27, the same evening as the assault, the evening
branch of ACS (ECS) directed the 70th Precinct to take Ms.
Nicholson's children from the babysitter and to transport them
to ECS. Tr. 849. The children stayed that night in the nursery
at ECS. Tr. 850. The following day, January 28, an ACS worker
called Ms. Nicholson at the hospital. The worker informed Ms.
Nicholson that ACS had possession of her children and that if
she wanted to see them she had to appear in court the following
week. The worker refused to tell Ms. Nicholson where her
children were. Ms. Nicholson testified that this news left her
"very upset . . . [and] devastated." Tr. 733. Ms. Nicholson
demanded that the hospital discharge her immediately so that she
could get more information about her children. She was
discharged, but the hospital informed her that the police had
left word that she was not to return to her apartment. Ms.
Nicholson made arrangements to stay with a cousin, Glynis Hall.
CPM Williams was assigned to oversee the Nicholson case. Tr.
847. CPM Williams was concerned by the notation in the report
ACS received from the State Central Register that Mr. Barnett
had threatened Ms. Nicholson with a gun. Tr. 863. Although CPM
Williams testified that such allegations require independent
investigation by ACS workers, Tr. 864, he never inquired of Ms.
Nicholson whether Mr. Barnett had in fact brandished a firearm
during the assault. Tr. 863. Ms. Nicholson testified that she
did not know whether Mr. Barnett beat her with or had a gun
during the assault, but that she told police it was possible.
Tr. 759. CPM Williams testified that he believed that the
children were in "imminent risk if they remained in the care of
Ms. Nicholson because she was not, at that time, able to protect
herself nor her children because Mr. Barnett had viciously
beaten her." Tr. 864.
CPM Williams testified that, under ACS policy, victims of
domestic violence are permitted to make decisions about who will
care for their children, and that these decisions do not require
court approval. Tr. 856. He nevertheless rejected Ms.
Nicholson's proposals for relatives who could care for the
children. Ms. Nicholson first requested that her children be
allowed to stay with her cousin, Michelle Brown, in New Jersey.
Mr. Williams testified, "I rejected that because she lived in
another state. I offered her as alternative, you can give me
relatives who live within the Metropolitan area." Tr. 857.
Williams testified that he imposed this condition because he
believed that in order to put children in the care of an
out-of-state relative he needed to obtain a court order, but he
did not try to obtain such an order. Tr. 860. Ms. Nicholson
proceeded to offer a cousin who lived in the Bronx as a
potential caretaker. Tr. 861. Williams did not allow the
children to go to the cousin's care either. Tr. 861. Instead, he
decided to place the children in foster care with strangers. Tr.
Although the children were placed in foster care by ACS on
January 28, a Thursday, no petition was filed in court until
February 2, the following Tuesday. Ex. 186; Tr. 852. Williams
conceded that, as of January 28, he knew that the children were
in ACS's care without legal authorization. Tr. 851. He explained
that he was hoping Ms. Nicholson would cooperate with his
demands in order to avoid going to court. Tr. 855.
CPM Williams gave conflicting testimony regarding how quickly
ACS is required to file a petition with the court once children
are taken into foster care. In his testimony before this court,
he affirmed that ACS is "required" to go to court the next
business day after placing a child in foster care, Tr. 853, that
ACS "should try" to do so, Tr. 853, and that in domestic
violence cases, it is common to wait a few days before going to
court in order to "try to work things out with the mother." Tr.
852. In his deposition, with which he was confronted in court,
Tr. 853-54, Williams stated that he had "been told in training"
that ACS has "several days" after a child is removed before it
is required to go to court to get approval. Williams Depo. 93.
He conceded that it is common in domestic violence cases for ACS
to wait a few days before going to court after removing a child
because, after a few days of the children being in foster care,
the mother will usually agree to ACS's conditions for their
return without the matter ever going to court. Tr. 852-53. Set
out below is
some of his understanding of ACS practice as revealed in his
Q: Mr. Williams, in ACS, if you removed a child, you
had three or four days to go to Court when it was
without the permission of the parent; is that
A: We have several days. That is correct.
Q: What is your basis for saying that? Is there
something in writing, is that something that you have
When the petition was filed with the Family Court on February
2 — five days after ACS had seized the children — it was filed
as a neglect petition against Ms. Nicholson as well as Mr.
Barrett. Ex. 186. CPM Williams testified that, as of the filing
of the petition, he did not believe that Ms. Nicholson was
actually neglectful; he hoped that "once she got before the
Judge, that the Judge would order her to cooperate with
realistic services to protect herself and the two
children. . . ." Tr. 868. It was CPM Williams' belief that Ms.
Nicholson was an inadequate guardian, because she was "refusing
to deal with the reality of the situation," that he could not
allow the children to stay with the relative in New Jersey, and
that it would be unsafe for her to return to her Brooklyn
residence with her children. Tr. 868-69. Had he made inquiry, he
would have learned that Mr. Barnett, the abuser, had never lived
at the Brooklyn apartment with Ms. Nicholson, that he did not
have a key to the apartment, and that he lived in South
Carolina. Tr. 726. Another basis for CPM Williams' attempted
justification was that Ms. Nicholson had failed to follow ACS's
instruction that she obtain an order of protection from a local
police precinct. Tr. 871-72. Ms. Nicholson had in fact attempted
to do so, but had been denied an order because Mr. Barnett lived
out of state and she did not know his address. Ex. 191. She had
informed CPM Williams of this fact. Tr. 871.
The petition of neglect filed by ACS against Ms. Nicholson and
Mr. Barnett included three allegations of neglect. The first
count, directed solely against Mr. Barnett, alleged excessive
corporal punishment. The second count, directed against both
parents, alleged that "[r]espondents engage in acts of domestic
violence in the presence of the subject child, Destinee. As a
result of one such fight, on or about January 27, 1999, the
respondent mother suffered a broken left arm and a head injury
caused when the father struck her with a gun." Ex. 4a at 106335.
This count made no distinction between the culpability of
batterer and victim. The final count was directed solely against
Ms. Nicholson, and alleged simply that she "fails to cooperate
with offered services designed to insure the safety of the
children." Id. There were no specific indications of what
services she had failed to cooperate with, or how any failure
As she had been directed to do by ACS, Ms. Nicholson appeared
at Family Court in Brooklyn on Tuesday, February 2. She did not
have, and was not provided with, legal representation for this
hearing. ACS was, of course, represented by one of its lawyers.
The Family Court ordered the children remanded to the custody of
ACS pending an order of final disposition. Ms. Nicholson
testified that she was not even aware that this order was
issued. Tr. 743. Only after the hearing was completed and the
order issued was this mother contacted by her appointed 18-B
lawyer. Tr. 743.
On February 5, eight days since she had last been permitted to
see or speak with her children, Ms. Nicholson was at last
permitted by ACS to visit with them. The supervised visit
occurred at the ACS foster agency in Queens. Tr. 745. Ms.
Nicholson was able to locate her daughter within the building by
following the sounds of her crying. Tr. 746. When Ms. Nicholson
found her daughter she was "sitting on a chair by herself with
tears running down." Tr. 746. Destinee had a rash on her face,
yellow pus running from her nose, and she appeared to have
scratched herself. Tr. 746. Her son had a swollen eye. Ms.
Nicholson demanded use of a phone to call the police, but she
was refused. She called from a pay phone across the street. Tr.
747-48. When the police arrived, Ms. Nicholson filed a report on
behalf of her son, who told her that his eye was swollen because
the foster mother had slapped his face. Tr. 747. Following Ms.
Nicholson's report, ACS arranged for a different foster mother
to have Ms. Nicholson's children. Tr. 747. When the new foster
mother arrived at the agency to take Ms. Nicholson's children at
the end of the visit, her boy, Kendell, asked the new foster
mother, "You are not going to hit me, are you?" Tr. 748.
On February 9, twelve days after the forced separation,
Kendell had his sixth birthday. Ms. Nicholson was not allowed to
see or speak with him on that day. Tr. 748.
On February 18, twenty-one days after the separation and
fourteen days after the Family Court had paroled Ms. Nicholson's
children to her, ACS returned her children to her. Tr. 750. The
reason ACS gave for this delay, Ms. Nicholson testified without
contradiction, was that after the court paroled the children to
her, an ACS caseworker decided that the children would not have
adequate bedding at the cousin's house in the Bronx that Ms.
Nicholson was to stay at. ACS provided no assistance to Ms.
Nicholson in moving the children's bedding from her Brooklyn
residence — which she had been ordered not to enter because of
potential danger to her — to the cousin's Bronx apartment.
e. Subsequent Case History
Following the return of Ms. Nicholson's children, ACS claimed
to have difficulty visiting with her and her children at her
cousin's Bronx residence. There is conflicting testimony on this
issue. Ms. Nicholson testified that ACS made an unannounced
attempt to visit her once at the cousin's house when she was not
there, that she subsequently called to schedule a new
appointment, and then had to cancel this appointment because of
a snowstorm. Tr. 751-52. CPM Williams testified that, from
February 18 until April 21, the caseworker made "six or seven"
attempts to visit Ms. Nicholson and the children, that some of
these visits were unannounced, and that Ms. Nicholson called the
ACS offices "several different times." Tr. 879-81. A warrant
application filed by ACS on March 15 stated that the ACS
caseworker had made several attempts to visit Ms. Nicholson at
both her cousin's Bronx address and her original Brooklyn
address, and that Ms. Nicholson had not returned the
caseworker's messages. Ex. 188.
The warrant ACS requested was granted. Afraid that ACS would
take her children, Ms. Nicholson sent them to stay temporarily
with her father in Jamaica. Tr. 754. Meanwhile, Ms. Nicholson
made several attempts to contact her 18-B attorney. These calls
were not returned. Tr. 755.
On April 7, as she was at the Post Office collecting her mail,
two police officers arrested Ms. Nicholson, handcuffing her and
taking her to the Family Court in Brooklyn. When Ms. Nicholson
came before the Family Court that afternoon, she was represented
by an 18-B attorney different from the one who had represented
her before. She explained to the court that her children were in
Jamaica. She was ordered to return to court on April 24. She did
so, and on that date, the court permitted Ms. Nicholson to
return to her own apartment in Brooklyn with the children. It
required her to cooperate with supervision and services offered
by ACS. After this hearing, ACS caseworkers visited Ms.
Nicholson bi-weekly until August, when the petition against Ms.
Nicholson was dismissed. Tr. 758.
ACS communicated to the State Central Register that the
neglect report stemming from the domestic violence incident was
indicated against both Mr. Barnett and Ms. Nicholson. Ex. 189 at
101042. Ms. Nicholson appealed this ruling. Tr. 766-67. She
received confirmation that OCFS would conduct an administrative
review of ACS's finding and notify her of the results. Ex. 189
at 101029. She has not yet heard from OCFS, so she remains on
the State's records as a neglecting parent. Tr. 767.
April Rodriguez is the biological mother of two children,
Elijah, age three, and Kayla, age two, and the step-mother of
Jasmine, age seven. Tr. 379-80. She has cared for Jasmine since
the girl was eighteen months old. Tr. 380. From 1995 until
August 2000, Ms. Rodriguez had a relatively stable living
arrangement with Michael Gamble, the father of the three
children. Tr. 381-82, 525. During that period, the children were
being properly taken care of and Mr. Gamble was never violent
towards Ms. Rodriguez or the children. Tr. 382, 525-26. Prior to
her involvement with ACS, Ms. Rodriguez was employed as an
assistant manager at a video rental store. Tr. 382.
b. Domestic Violence Against Ms. Rodriguez
On August 29, 2000, while the children were in their bedrooms,
a verbal dispute in the hall of their apartment escalated and
Mr. Gamble pushed Ms. Rodriguez onto the floor, scraping her
mouth. Tr. 382-83. Although she was injured, Ms. Rodriguez did
not believe the children were in any danger. Tr. 384. Mr. Gamble
had never been abusive toward the children. Tr. 486. She
reported the incident to the police the next day and Mr. Gamble
was arrested. Tr. 384, 527.
After this incident, Ms. Rodriguez no longer felt safe living
with Mr. Gamble at their Brooklyn home. Tr. 385. She fled with
Elijah and Kayla first to her aunt's house, where she stayed for
two weeks, and then to her grandmother's house. Tr. 386-87.
Jasmine had been picked up at the police station by Mr. Gamble's
sister, and then went to live with the paternal grandmother. Tr.
386. Ms. Rodriguez decided not to go to a domestic violence
shelter because she was informed by domestic violence hotline
counselors that she would have to quit her job in order to
qualify. Tr. 387.
Shortly after this meeting, Ms. Rodriguez was served notice
that Mr. Gamble was seeking legal custody of the children. Tr.
389. Ms. Rodriguez began receiving telephone calls at work from
various ACS staff. Tr. 389-90. On one occasion Ms. Rodriguez
returned to the Brooklyn home where Mr. Gamble was residing to
meet with Ms. Williams and Mr. Gamble to discuss the custody
situation. Tr. 390.
On October 10, Ms. Rodriguez received a call at work from ACS
demanding that she leave work and visit their offices
immediately. Tr. 391. Ms. Rodriguez complied, and when she
arrived at ACS, Ms. Williams and her supervisor, Mr. Bentil,
told Ms. Rodriguez that she had been violating an order of
protection. Tr. 391. What, if any, order of protection the ACS
personnel were referring to has never been established. Both Ms.
Rodriguez and James Stewart, the CPM later assigned to the case,
testified they had never seen any such order of protection. Tr.
On October 11, Ms. Rodriguez was again called by ACS to a
conference with Mr. Bentil, Ms. Williams, Mr. Gamble, Elijah and
Kayla. Tr. 392. At that conference, Ms. Rodriguez signed an
agreement transferring custody of the children to Mr. Gamble for
six months, or until Ms. Rodriguez obtained an apartment of her
own and day care for the children, whichever came earlier. Tr.
393, Ex. 92.
There was conflicting testimony as to how this agreement
developed. Ms. Rodriguez testified that Mr. Bentil told her
"that we needed to come up with an agreement between me and Mr.
Gamble about my children, or [ACS] would go to court." Tr. 392.
Ms. Rodriguez further testified that Mr. Bentil suggested the
children should stay with Mr. Gamble, and that "[Mr. Bentil]
kept getting by the door and telling me that he was going to go
to court, and I kept asking, but why, if I have not done
anything wrong? Then they finally came up with an agreement that
[Ms. Williams] wrote up on ACS paper, stating that I would give
my children to Mr. Gamble for six months, and had me sign the
bottom of it. . . ." Tr. 393. By contrast, CPM Stewart testified
that Ms. Rodriguez proposed the idea of allowing the children to
stay with Mr. Gamble in order to avoid their being placed in
foster care. Tr. 486-87.
The court credits Ms. Rodriguez's testimony. CPM Stewart had
not yet been assigned to this case when the meeting in question
took place and was not present. His account is secondhand.
It is undisputed that the children went to stay with Mr.
Gamble after the agreement was signed. Tr. 393-94. At this
point, Ms. Rodriguez had not yet gone to court. She had no
attorney. Tr. 474.
At some point, ACS became aware that there had been a past
allegation of sexual abuse against Mr. Gamble investigated by
ACS. Ms. Rodriguez testified that she learned this for the first
time from ACS at meetings on October 10 and 11. This information
so concerned her that following the October 11 meeting she
called someone at ACS about the issue. Tr. 397. Ms. Rodriguez
testified that she then received a call from Mr. Gamble who told
really did it this time. . . . They are going to take the kids
away." Tr. 398. Ms. Rodriguez then received a call from Mr.
Bentil, who told her that she "had gotten them into trouble."
Tr. 398. CPM Stewart testified that, on August 30, ACS only knew
that Mr. Gamble had a case previously indicated with SCR, and
that ACS did not learn that the prior case was for sexual abuse
until October 13. Tr. 438, 448. Although it would have been
simple to determine the nature of the indicated case by checking
with the SCR, and it was apparently ACS policy to do so, CPM
Stewart testified that nobody at ACS tried to do this. Tr.
446-47. CPM Stewart began taking an active role in the case on
October 12, after the ACS central office called him and asked
him to "look into the case and see what the situation was." Tr.
434. The evidence suggests that ACS did know of Mr. Gamble's
prior indicated sexual offense early in the investigation, but
that it nevertheless coerced Ms. Rodriguez into turning over
custody of the children to her abuser.
On October 12, ACS visited the paternal grandmother, who was
caring for the children on behalf of Mr. Gamble. Tr. 449. ACS
asked the grandmother to "keep the children there" until they
learned more about the father's status. Tr. 450. CPM Stewart
directed Ms. Williams to tell both the mother and father that
they could not take the children from the grandmother's house.
ACS had not yet filed a petition or obtained a judicial order
authorizing removal. CPM Stewart testified that "I didn't have
enough information to go into court, but I did have enough to
put the children into some type of secure environment outside of
the father's home." The sole reason that Stewart gave for
preventing the mother, Ms. Rodriguez, from having the children
was because she lacked adequate housing. Tr. 453-54
d. Court Proceedings and Further Removal
On October 16, more than a month and a half after the assault
on Ms. Rodriguez, ACS filed petitions alleging neglect against
both Ms. Rodriguez and Mr. Gamble. Tr. 455. Although CPM Stewart
testified that on October 12, he did not believe Ms. Rodriguez
to be a neglectful mother, he apparently changed his mind prior
to the filing of the petitions. Tr. 483. He explained that he
changed his opinion because on October 13, he discovered that
Ms. Rodriguez had been given an order of protection preventing
Mr. Gamble from having custody of the children, and that she had
failed to enforce this order by allowing Mr. Gamble to have
custody of Jasmine Gamble. Tr. 456. CPM Stewart admitted that he
had not seen this order when he made his decision, still had not
seen it as of the hearing, did not know if it was in effect on
October 13, and did not know the terms of this phantom order.
Tr. 456-57. It also bears recollecting that five days before the
petitions were filed, ACS had coerced Ms. Rodriguez into
accepting an arrangement by which she was required to
temporarily transfer custody of all three children to Mr.
The neglect petitions did not mention any failure to enforce
an order of protection on the part of Ms. Rodriguez. Instead,
they alleged that she and Mr. Gamble "engage in serious domestic
violence in the home and in front of subject children." Ex. 91a,
Despite the court order, the children were not immediately
returned to Ms. Rodriguez, who was then living at her
grandmother's home. Tr. 406. After her appearance before the
Family Court, Ms. Rodriguez testified, ACS told her she would
have to enter a domestic violence shelter before ACS would
permit the children to be returned to her. Tr. 410.
Additionally, ACS informed her that reunification would be
delayed because the foster care mother had to be apprized and
the children had to have a medical examination prior to their
discharge. Tr. 408.
e. Subsequent Case History
On October 25, because ACS had told her that they would not
return her children to her unless she entered a shelter, Ms.
Rodriguez entered the Emergency Assistance Unit (EAU). This is a
temporary shelter where homeless people stay while they search
for permanent shelter. Tr. 411. Late that day, Ms. Rodriguez's
children were returned to her. Tr. 411. The children were in
poor health. Ms. Rodriguez testified that the children "were not
the same kids I gave [ACS]." Tr. 412. She recounted that:
[Her] daughter's hair was all breaking. . . . Her
shirt was filthy, and her diaper was disgusting. The
seven-year-old had bags under her eyes. She looked
disgusting. And at the time, he was two years old,
Elijah, he had all this (sic) bruises and pus and
blood coming out of his lip. I didn't know what it
The children had been discharged from foster care at
approximately 6:00 p.m., but by 1:00 a.m., their mother was so
alarmed by their physical condition that she took them to the
nearby hospital emergency room. Upon their arrival at the
hospital, all were regurgitating and both of the youngest
children had ear infections. They were treated and antibiotics
prescribed, with the youngest child also being given a cream for
a festering facial infection. Tr. 412-13.
For the next week, Ms. Rodriguez and her children were
shuttled back and forth every day between the EAU offices and a
temporary evening shelter. Tr. 414. She and the three children
were then placed in a shelter in the Bronx. Tr. 415. This
shelter was not a domestic violence shelter. Its location was
not confidential and there were no services for domestic
violence victims or their children. Tr. 415. The space provided
to Ms. Rodriguez and her children was one room with a bathroom.
Tr. 415. The family stayed at this shelter until February, when
she and the children were moved to a more permanent "Tier-2"
facility. Tr. 416. Ms. Rodriguez was forced to quit her job
because the strict curfew at the Tier-2 facility conflicted with
the hours she was required to work. Tr. 417. Ms. Rodriguez, who
had never before had to resort to welfare, now must rely on
public assistance. Tr. 417.
CPM Stewart testified that neither Mr. Bentil, the case
supervisor, nor Ms. Williams, the caseworker, did anything wrong
in their handling of the Rodriguez case. Tr. 435-36. It was, in
their opinion, in conformance with regular practice.
Ms. Udoh has worked for the Board of Education as a
paraprofessional and teacher's assistant for eight years,
assigned primarily to high school special education students.
Tr. 958. She supports her four youngest daughters solely on the
$23,000 salary that she earns. Tr. 958. Her oldest daughter,
Edu, currently attends Binghamton University, and her
second-oldest daughter, Ima, is attending Old Westbury College.
b. Domestic Abuse Against Ms. Udoh
Shortly after Ms. Udoh moved to the United States and joined
Mr. Udoh in Kentucky, she became pregnant with her first
daughter. The child was born prematurely in 1978, weighing only
two pounds. Tr. 969. The premature birth was triggered by Mr.
Udoh's beating her; Ms. Udoh testified that "Eddey was upset
with me that I was pregnant with the first child. He wasn't
ready for babies, and then it was just a little argument in the
house that he beat me up." Tr. 970. From 1977 to 1982, while the
couple lived in Kentucky, Ms. Udoh testified that Mr. Udoh "beat
me up as many times as possible. . . . There were too many
times. I can't recall all of them." Tr. 971.
Despite being unfamiliar with the American justice system when
she arrived, Ms. Udoh soon became acquainted with it. Tr. 970.
She called the police "many" times to report incidents of abuse
by Mr. Udoh, but the police never arrested her husband. Tr. 971.
The police did take her to a shelter once, when a neighbor
called the police after witnessing Mr. Udoh chase Ms. Udoh, who
was naked and bruised, out of their house, beating her. Tr. 971.
The police left her children with Mr. Udoh, and Ms. Udoh
returned to the family home three weeks later. Tr. 973.
The Udoh family moved to New York in 1984 after spending two
years in Philadelphia where Mr. Udoh earned a graduate degree.
Tr. 973. Mr. Udoh continued to beat Ms. Udoh regularly. In 1985,
after another beating, Ms. Udoh again called the police. The
police came, but did not arrest Mr. Udoh and did nothing to
assist Ms. Udoh or her children in leaving the house. Tr. 975.
Besides beating his wife, Mr. Udoh also beat the children with
his hands or a belt. Ms. Udoh would try to intervene, talking
with him to calm him down or, if that failed, calling the
police. Tr. 975. The police never arrested Mr. Udoh. Tr. 977.
In 1995, Ms. Udoh went to court and obtained an order of
protection ordering Mr. Udoh not to assault her. Ex. 199. Ms.
Udoh did this without a lawyer's assistance. Tr. 979. The order
did not require Mr. Udoh to move out of the house. Tr. 979. In
1996, Ms. Udoh went to court again and obtained a new order of
protection. Ex. 200.
The father claimed the inherent right to beat his wife and
children. An ACS investigation conducted in relation to Ms.
Udoh's complaints included the following observations:
Ex. 112 at 000083. Despite this report ACS did not help Ms. Udoh
leave or attempt to remove Mr. Udoh from the household, or limit
his contact with his wife or children.
In 1997, Ms. Udoh took the children and moved out of the home
in Queens to a new residence in Brooklyn. Tr. 985. Mr. Udoh
would not let her take her possessions, and Ms. Udoh obtained a
court order authorizing her to collect her belongings with
police protection. Ex. 202 at 003226. In 1998, Ms. Udoh filed a
complaint that Mr. Udoh was violating an order of protection by
making threatening calls to her. Mr. Udoh was arrested and spent
one day in jail. Tr. 990. In 1999, due to financial
difficulties, Ms. Udoh and her children moved back to the Queens
residence with Mr. Udoh. Tr. 996. From January of 1999, when Ms.
Udoh returned to live with Mr. Udoh, until May 1, 1999, Ms. Udoh
testified that Mr. Udoh did not hit her or her children. Tr.
c. Abuse Triggering Removal
In early May, after Ms. Udoh had fallen asleep, she was
awakened by the sound of Asuno, her daughter, screaming. Tr.
960. Ms. Udoh found her daughter crying in the bathroom; Asuno
explained that her father had hit her in the eye because she was
not able to fit all of the dirty dishes in the dishwasher. Tr.
961. Ms. Udoh tended to Asuno's eye with an ice pack and stayed
up with Asuno the rest of the night. Tr. 961.
Ms. Udoh wanted to take Asuno to the doctor to get her eye
examined, but she had to go to work first to get permission to
take the day off, because she had already used all of her
available sick days. Tr. 962. After receiving permission from
her supervisor, Ms. Udoh went to the school. Tr. 962. School
officials asked what had happened to Asuno, and Ms. Udoh
explained that Asuno's father had hit her. Tr. 962. Ms. Udoh
then took her daughter to the doctor. Tr. 962. The school
guidance counselor called ACS to report the incident. Tr. 962.
After Ms. Udoh returned from the doctor, two ACS caseworkers
visited the Udoh household and interviewed Mr. and Ms. Udoh,
Asuno, and another daughter, Edu. Tr. 963. A caseworker informed
Mr. Udoh that she would call the police if he continued to live
at the Queens address. Tr. 964. Ms. Udoh and the children
accompanied the caseworker to the ACS office. She and the
children then filed a report with the police. Tr. 965. When Ms.
Udoh returned home with her daughters, Mr. Udoh had left. Tr.
965. His clothes were gone. Mr. Udoh never returned to the home.
In March of 2000, Mr. Udoh returned to Nigeria. Tr. 965,
While at the ACS offices, the ACS caseworker told Ms. Udoh to
appear in Family Court the following day, May 6, at 2:00 P.M.
Tr. 966. CPM Delamothe, who was assigned to the Udoh case,
testified that on May 5, ACS did not consider the children to be
in imminent danger if they remained with the mother. Tr. 1020.
It was for this reason that it allowed Ms. Udoh to return home
with her children. Tr. 966.
On the morning of May 6, CPM Delamothe directed the caseworker
to meet with the legal department preparatory to filing a
petition against Mr. Udoh. Tr. 1023. The legal department then
called Delamothe and advised her that a legal basis existed to
name Ms. Udoh as a respondent on the neglect petition as well on
the basis that she had "engaged" in domestic violence. Tr. 1023;
Ex. 160 A-C. CPM Delamothe decided to take this step. Tr. 1023.
CPM Delamothe also authorized the immediate removal of Ms.
Udoh's children on May 6, without a court order. Tr. 1012. She
testified that the children were in "imminent danger" because
Mr. and Ms. Udoh might "be in [Family] court at the return of
the children from school and [the children] wouldn't have
parents to come home to. . . ." Tr. 1026. Although the four
children at home were ages twelve, thirteen, sixteen, and
seventeen, CPM Delamothe was, she said, concerned they might not
have keys to enter the house. Tr. 1026, 1027. CPM Delamothe
could not recall whether the caseworker asked the children
whether they had keys to the house when they were picked up by
ACS, or whether the caseworker offered to wait with the children
until Ms. Udoh returned from court. Tr. 1027.
Before Ms. Udoh left work to go to her scheduled court
appearance, ACS called her to tell her not to come to court, and
that her children had been removed from school and put in foster
care. Tr. 967. CPM Delamothe testified that the removal of the
Udoh children was in accord with ACS's stated policy of
resolving any ambiguity regarding the safety of the child in
favor of removing the child. Tr. 1034.
When the children were picked up from school by ACS, they were
interviewed by a caseworker. Edu Udoh, then seventeen, told the
caseworker that "I felt very comfortable staying with [my
mother]. I am safe. . . . I told her I didn't think it was
necessary to be removed, and I felt a great suffering if I was
removed from my house." Tr. 894-95.
On May 7, ACS filed neglect petitions against Ms. Udoh and her
husband, alleging that, for approximately twenty years, she had
"engaged in domestic violence" with him in the presence of the
children. Tr. 968, 1030, 1033; Ex. 160 A-C. The petition also
alleged, incorrectly, that the mother had never obtained an
order of protection against Mr. Udoh as to the children. Ex. 160
A-C at 4. CPM Delamothe could not recall why this allegation was
included; she conceded that she was aware that several orders of
protections had been obtained. Tr. 1045-46. On page two of the
petitions, there are only blank spaces where answers are
required for why insufficient time was available to obtain a
court order prior to removal and why removal of the children was
necessary. Ex. 160 A-C.
Later that day, the matter was heard by the Family Court. It
was adjourned so that ACS could investigate to determine whether
the children could safely return home. Tr. 1046. On May 20, ACS
agreed that it was safe for the children to return home; the
Family Court then ordered the children paroled to the mother.
Tr. 998, 1048. Yet it took eight days for ACS to notify the
foster care agency with which the children had been placed that
the court had ordered them paroled to Ms. Udoh. Tr. 1049-51; Ex.
79; Ex. 196. The delay prompted the Juvenile Rights Division of
the Legal Aid Society, which was representing the children, to
file on May 27 an application seeking the immediate release of
the children from ACS custody. Ex. 195. In this application, the
children's attorney noted that the delay in returning the
children to their mother was harming
the children, among other reasons, because "[t]hey have been
missing classes because their foster mother is unable to get
them to school on time" and, ironically, "the foster mother has
refused to provide house keys to the children and they have been
locked out of their foster home repeatedly." Ex 195; Tr. 901-02.
f. Subsequent Case History
Edu Udo, one of the daughters, described her time at the
foster home as "very uncomfortable;" the foster mother "treated
us like we were criminals." Tr. 899. The Udoh children were
locked in the house without access to the telephone when the
foster mother would leave. Tr. 899-900. The forced stay in
foster care was particularly hard on Edu because she was
college-bound and in the midst of studying for her regents
examinations. ACS refused to let her return home to retrieve her
study materials. Tr. 898.
Following the return of her children, ACS contemplated
withdrawing the petition as to Ms. Udoh. Ex. 197. Ms. Udoh was
informed that, if she would testify against her husband, ACS
would withdraw the charges against her. Tr. 999. Ms. Udoh met
with ACS and prepared to testify against Mr. Udoh, but the
petition was never withdrawn as to her. Tr. 1003. On October 13,
1999, the Family Court ordered the case adjourned in
contemplation of dismissal. Tr. 198. ACS continued to visit Ms.
Udoh for almost a year. Tr. 1004. When the caseworker would
visit Ms. Udoh's house, she would "go though my refrigerator to
look for food and she would go through the whole house to
inspect it." Tr. 1004. Ms. Udoh was also required to provide the
children's school and medical records to the caseworker during
these visits. Tr. 1004. The abuser was during all this time in
Sharlene Tillett has two children, Winston and Uganda. In
1995, Ms. Tillett moved from Belize to New York to join her
husband, Winston Denton Sr., who was already living there. Ex.
77 at 22. She had been married to Winston Denton Sr. for four
years. During that time there had been sporadic incidents of
domestic violence but no child abuse. Ex. 77 at 22. Shortly
after arriving in the United States, Ms. Tillett and her husband
Ms. Tillett moved to California. There, she began a three-year
relationship with Jamie Gray. The couple eventually moved back
to New York. During this period, there were "isolated episodes"
of domestic violence against Ms. Tillett sparked by Mr. Gray's
jealousy over Ms. Tillett's estranged husband. In 1999, two
months before the birth of Uganda, Ms. Tillett arranged to have
her son Winston live with relatives in California because she
did not want Winston to witness her being battered by Mr. Gray.
b. Domestic Violence Against Ms. Tillett
On August 19, 1999, Ms. Tillett visited a hospital and
informed the staff that Mr. Gray had choked her; at this time,
Ms. Tillett was expecting the birth of her second child, Uganda.
Ex. 77 at 4. She was sent home. Two days later, on August 21,
she returned to the hospital in labor, and delivered Uganda that
afternoon. Tr. 1057; Ex. 77 at 4. While at the hospital, Ms.
Tillett informed the staff that there was a history of domestic
violence against her by Mr. Gray. Ex. 77 at 4. After she and her
newborn were cleared to be released, Mr. Gray arrived at the
hospital and drove Ms. Tillett and Uganda home. Ex. 77 at 7.
According to Ms. Tillett, she accepted a ride with him because
not want to cause a commotion at the hospital; he did not come
into her apartment after he dropped her off. Ex. 77 at 7.
On August 23, the hospital made a report to State Central
Register, which transmitted it to ACS for investigation. CPM
Delamothe was assigned to oversee the case. Tr. 1060. The
following day, a caseworker visited Ms. Tillett at her home. The
caseworker found the baby to be "very healthy . . . clean and
neat," with clothing and pampers. Tr. 1061. The caseworker did
not remove the child. Tr. 1062-63.
The caseworker returned to the office and reported to her
supervisor, who in turn reported to CPM Delamothe. Tr. 1063. CPM
Delamothe, who had not herself spoken with or interviewed Ms.
Tillet, directed that the caseworker return and remove Uganda
from her mother. Tr. 1063. CPM Delamothe decided that Uganda was
in "imminent danger" because the apartment that Ms. Tillet was
living in was being paid for by Mr. Gray (even though Ms.
Tillett had told the caseworker that Mr. Gray had moved out on
August 19), and because Ms. Tillett was unemployed and dependent
on Mr. Gray for financial support (even though Ms. Tillett had
told the caseworker that she was expecting support from her
family in California). Tr. 1063-64; Ex. 77 at 7.
ACS proceeded to remove Uganda without a court order, and
before offering Ms. Tillett any services. Tr. 1064-68, 1082. At
trial, CPM Delamothe admitted that, given that Ms. Tillett was
breast-feeding Uganda and had a ready supply of pampers and
clothes for the child, the child was not in immediate danger due
to Ms. Tillett's financial situation. Tr. 1064. The ACS case
record prepared during the investigation states: "Infant was
removed from his home because there was on-going domestic
violence in the home." Ex. 77 at 14.
The following day ACS filed a neglect petition against Ms.
Tillett as well as against Mr. Gray alleging that she "engage[d]
in acts of domestic violence in the presence of the subject
child." Ex. 161. Of course Uganda was not yet born at the time
that Ms. Tillett reported being choked by Mr. Gray and during
the trial CPM Delamothe conceded that, as an unborn baby, Uganda
could not "witness" the violence. Tr. 1062.
ACS also charged Ms. Tillett with child neglect because she
did not have a crib or "means for supporting or caring for" the
baby. Ex. 161. CPM Delamothe admitted that Ms. Tillett's
sleeping arrangement for her child, namely sleeping with Uganda
in the same bed, was not neglectful per se. Tr. 1078. She could
not explain why Ms. Tillett should not be permitted to sleep
with Uganda when ACS does not consider it to be neglectful when
other mothers do so. Tr. 1078-79.
On September 3, 1999, the Family Court remanded Uganda to ACS
with privilege to parole. This meant that ACS could return
Uganda to Ms. Tillett if the residence was inspected and found
to be safe. Tr. 1087; Ex. 77 at 13.
Nevertheless, at CPM Delamothe's insistence, Uganda was not
returned to Ms. Tillett until October 20, 1999, a month and a
half later. CPM Delamothe's reason for refusing to parole Uganda
to Ms. Tillett was she thought Ms. Tillett should undergo a
psychological evaluation, Ex. 77 at 15, 16, because Ms. Tillett
had been in two abusive relationships in her lifetime. Tr. 1086,
1088-1089, 1090. CPM Delamothe testified that "I have learned
that in domestic violence cases there exists sometimes a
syndrome with the mothers, and they will replace one batterer
for another." Tr. 1088. CPM Delamothe conceded that Ms. Tillett
could not be expected to predict whether a person would be
violent towards her before entering a relationship with the
person. Tr. 1090. There had been no mention in the September 3
order of the Family Court that ACS should require a
psychological evaluation of Ms. Tillett before returning Uganda
Ms. Tillett objected to being required to undergo a
psychological evaluation; she told ACS that her attorney had
advised her that ACS could not condition the return of Uganda on
her doing so. Ex. 77 at 14. Ms. Tillett then was asked to attend
a conference with ACS caseworkers to discuss her family history
and plans. Ms. Tillett brought her attorney with her, but CPM
Delamothe refused to allow Ms. Tillett's attorney to attend the
conference. Tr. 1093. CPM Delamothe testified that ACS policy
was not to permit mothers to bring any legal representation to
such conferences, Tr. 1097-98, even though everything the mother
says is recorded and she might, among other things, incriminate
herself. Tr. 1099.
When ACS finally determined that the infant could safely be
returned to Ms. Tillett on October 20, two months after
separation on August 24, Ms. Tillett had not undergone any
psychological evaluation. CPM Delamothe admitted that a
psychological evaluation "wasn't necessary" for the child to be
returned. Tr. 1091.
ACS reported to the SCR that the report against Ms. Tillett
was "indicated." Ex. 77 at 18. The report apparently has not
Michele Garcia is the mother of three children, Benjamin,
Giselle, and Jordan. She works as a dental assistant. In January
of 1999, after a seven-year relationship, Ms. Garcia separated
from Benjamin's father, Mr. Hunter. Ex. 89 at B100109. There
were verbal disputes over visitation between the two, which Ms.
Garcia reported to her local police precinct, but the father
never assaulted Ms. Garcia. Ex. 89 at 100111-100112.
b. Domestic Violence Against Ms. Garcia
On July 19, 1999, Ms. Garcia's counselor at Victim's Services
Agency reported to the State Central Register that Mr. Hunter
had mistreated the children by assaulting Ms. Garcia. Ex. 89 at
1001010. On July 26, an ACS representative first spoke with Ms.
Garcia to schedule interviews with her and her children. Ex. 89
at 100102. Ms. Garcia told ACS that she did not feel comfortable
having strangers interview the children, and was concerned that
such interviews would only aggravate the children's trauma. Ex.
89 at 100102. Ms. Garcia agreed to meet with ACS on July 30; ACS
had demanded that she meet earlier, but Ms. Garcia indicated
that her work schedule and hospital visits would make any
earlier visit impossible. Ex. 89 at 100103.
The caseworker consulted with ACS's legal counsel about the
possibility of forcing Ms. Garcia to meet prior to July 30;
counsel advised the caseworker that there were no legal grounds
to force an earlier meeting. Ex. 100103. Legal counsel also
advised the caseworker that, "Since [Ms. Garcia] already has an
order of protection against [Mr. Hunter], and she has already
left her previous home to stay with her Aunt, then she is at
least safeguarding the safety of herself and her children." Ex.
89 at 100103. Counsel advised the caseworker to continue to
engage Ms. Garcia and her family "in order to come to a
compromise on an agreement." Ex. 89 at 100103.
Nevertheless, the ACS caseworker attempted to visit Ms. Garcia
every day for the next three days in order to make an assessment
of the children's safety. Ex. 89 at 100104. On July 29 Ms.
Garcia contacted ACS; she was angry that ACS had been attempting
to make unannounced visits to her home while she was away, and
when there was already an agreed-upon interview date scheduled
for July 30. Ex. 89 at 100104. Ms. Garcia again voiced serious
concern that the interviews ACS intended to conduct with her
children would be harmful to them, a concern that was not
assuaged by the fact that ACS refused to tell Ms. Garcia what
kind of questions would be asked during the interview. Ex. 89 at
100103, 100104. At trial, plaintiffs' expert Dr. Evan Stark
testified that Ms. Garcia's concern that ACS might re-traumatize
her children by conducting insensitive and uninformed interviews
was supported by good clinical evidence. Tr. 1582.
On August 2, ACS's domestic violence specialist Cheryl Meyers
interviewed all three children and the mother. Tr. 1234-45; Ex.
89 at 100104, 100108. The notes from the interview indicated
that the children had no physical injuries, they had not been
hurt during the attack on Ms. Garcia, their basic needs were
being attended to, they were clean and neat, and they exhibited
no symptoms of developmental disabilities. Ex. 89 at 100108. Ms.
Garcia was cooperative with ACS during the interview, providing
extensive information about her relationship with Mr. Hunter,
prior disputes she had reported, the attack that took place, and
her subsequent efforts to help the police locate Mr. Hunter and
to otherwise protect herself and her children. Ex. 89 at 100103.
Ms. Meyers concluded
that Ms. Garcia was a strong woman who would do anything to
protect her children, and that removal of her children was not
necessary. Tr. 1234.
After the interview, ACS contacted the police to verify the
information Ms. Garcia had given about the existence of prior
disputes. The record of reports involving Ms. Garcia consisted
of eight incidents, which are summarized below:
March 17, 1992: Mr. Reyes, father of one of Ms.
Garcia's children, punched Ms. Garcia in the nose
during a verbal altercation, then fled the scene.
March 18, 1992: Mr. Reyes again entered the home and
struck Ms. Garcia in the face, causing no injuries.
November 5, 1995: Mr. Hunter and Ms. Garcia had a
dispute. No physical violence was reported.
April 27, 1997: Mr. Reyes had a verbal dispute with
Ms. Garcia about picking up the children, and
threatened Ms. Garcia and her children. No physical
violence was reported.
August 31, 1997: Mr. Hunter took their son, Benjamin,
overnight and failed to promptly return him. No
physical violence was reported.
September 21, 1997: Mr. Hunter banged on Ms. Garcia's
door. Ms. Garcia obtained a six week restraining
order against him. No physical violence reported.
February 28, 1999: Ms. Garcia called and reported
that she didn't want to live with Mr. Hunter anymore.
No physical violence reported.
July 6, 1999: Mr. Hunter physically attacked Ms.
Garcia and her friend.
Of the seven reports made prior to the attack on Ms. Garcia
that prompted ACS review, only two involved physical violence;
both occurred in a two-day period seven years prior to Mr.
Hunter's attack on Ms. Garcia, and both involved Mr. Reyes, a
former partner, whose contact with Ms. Garcia after these
incidents, from what can be determined in the case report,
appears to have been limited to child visitation. None of the
reports involving Mr. Hunter prior to July 6, 1999, suggested
violence or a threat of violence against Ms. Garcia or any of
Nevertheless, based on these reports, ACS determined that
there was a "long history of domestic violence" in the
household, and that the case should be indicated against Ms.
Garcia because, "although she took the necessary precautions of
protecting her children by filing complaints at the local
precincts," she had let the batterers back into her life and did
not "see herself as a victim of domestic violence." Ex. 89 at
This somewhat abrupt decision by ACS to target Ms. Garcia as a
subject of the investigation, charge her with neglect, and
remove her children, may be illuminated by the notes in the case
record that, two days before the remand was requested, CPM
Lowell met with the case supervisor and caseworker, and ordered
the caseworker to file the case and ask for a remand "based on
the fact that [Ms. Garcia] has blatantly refused to cooperate
with ACS." Ex. 89 at 100117. A similar refrain emerged from the
testimony of Giselle Reyes, one of Ms. Garcia's children who was
removed. When she asked the caseworker why she and her siblings
were being taken away from their mother, the caseworker replied
"[o]ver a phone call, if your mom would have called, you would
not have been removed." Tr. 1341.
On August 27, 1999, more than a month and a half after the
precipitating incident and long after the children and their
mother had settled down peacefully, the Family Court granted
ACS's petition to remove the children. The children were placed
with Mr. Hunter's aunt.
Although the source of the "imminent danger" that CPM Lowell
testified about was the lack of counseling the children received
while in Ms. Garcia's custody, the children apparently never
received counseling while in foster care under the control of
ACS. Tr. 1343. CPM Lowell could not recall ACS making any
efforts to provide them with such services. Tr. 1355-57.
Following the removal of her children by ACS, the ACS case
record indicates that "[Ms. Garcia] is very receptive to
services and is willing to do whatever it takes for her to get
her children back." Ex. 89 at 100118. The children were, of
course, hostages to compliance.
Michelle Norris is a twenty-four year old mother of one. Her
son, Justin, is two years old. She is employed at JFK Airport in
Queens. Tr. 1181. Her first encounter with ACS occurred in
March, 2000, when a caseworker from ACS visited the home to
investigate a report of possible domestic violence and drug use
in the household. Tr. 1185. At that time, Ms. Norris was in a
relationship and living with Justin's father, Angel Figueroa.
Ms. Norris asked the caseworker if she was there to take Justin
away, and the caseworker responded that "we only take away kids
if there's domestic violence or if you're on drugs." Tr. 1185.
The caseworker examined Justin, assessed the living quarters,
and told Ms. Norris that everything looked fine and that she
should have nothing to worry about. Tr. 1185.
b. Domestic Violence Against Ms. Norris
Later that month, Ms. Norris decided to break the relationship
and depart from the apartment of Mr. Figueroa. Tr. 1186. Mr.
Figueroa did not approve. As Ms. Norris was collecting her
things, he attacked her. She testified that "[Mr. Figueroa]
dragged me by my hair, threw me into a wall, hit me in the
face." Tr. 1186. Ms. Norris could not get to a phone, but the
landlord was able to summon the police. Ms. Norris showed the
police her injuries and asked them to arrest her batterer. Tr.
1187. She filed a police report against Mr. Figueroa, and was
granted an order of protection. Tr. 1188-89.
The apartment in which she had lived with Mr. Figueroa was
rented in her, not his, name. Nevertheless, after the attack,
Ms. Norris and Justin temporarily moved in with a friend to
ensure their safety. Tr. 1189. Many of her belongings were still
at her apartment, and on April 5 Ms. Norris returned to collect
them. Tr. 1190, Ex. 222. Mr. Figueroa was not present when Ms.
Norris arrived, and Ms. Norris did not believe he would be
there. Tr. 1190; 1215. Mr. Figueroa, however, returned to the
apartment while Ms. Norris was still there, and attacked her
breaking her phone and hitting her in the face. Tr. 1190.
The police were called, and when they appeared Mr. Figueroa
took the baby to the bathroom and locked the door. Tr. 1190. The
police informed Ms. Norris that, because of the order of
protection, either she or Mr. Figueroa would have to leave the
apartment or both would be placed under arrest. Tr. 1190. Ms.
Norris explained to the police that she was trying to leave, but
that she wanted her son back first. Tr. 1190. Mr. Figueroa
refused to leave the bathroom, and the police escorted Ms.
Norris out of the apartment without helping her take her son
back from Mr. Figueroa. Tr. 1190-91.
The next day, Mr. Figueroa left Justin with a baby-sitter, and
Ms. Norris returned to take the child. Tr. 1192. Since Justin
was running a fever, Ms. Norris immediately took him to a
hospital emergency room. Tr. 1192.
On the way to the hospital, Ms. Norris received a call from an
ACS caseworker. The caseworker told Ms. Norris that she had
neglected Justin by "engaging in domestic violence" and "leaving
him with an abusive man." Tr. 1193. Ms. Norris told the
caseworker that she had been forced to leave her son by the
police; the caseworker answered that was "irrelevant." Tr. 1193.
The caseworker informed Ms. Norris that she had twenty-four
hours to surrender Justin to ACS custody. Tr. 1192-93. When Ms.
Norris told the caseworker that Justin was in the hospital with
pneumonia, the caseworker responded that "as far as we're
concerned, your son belongs to the state right now." Tr. 1193.
Ms. Norris protested that she had done nothing wrong, and that a
judge would surely return custody of the child to her; the
caseworker's reply was that "the judge is always on ACS's side."
As she had been instructed to do, Ms. Norris brought Justin to
the ACS office the next day. Ms. Norris testified, "it was the
worst part of my life. I mean, I didn't know what was going to
happen from there. I didn't know where he was going to go. I had
no rights, . . . [ACS] told me, he wasn't my son anymore." Tr.
That day, ACS filed a neglect petition against both parents.
The petition alleged that both "engaged in domestic violence."
Ex. 222. The only allegation not directly related to domestic
abuse was an allegation "based on information and belief" that
both parents used drugs. There is nothing in the record
indicating any evidence supported the report of drugs. ACS did
not test Ms. Norris for drugs before filing the petition. Ms.
Norris on her own initiative sought drug testing to exonerate
herself. On April 26, almost three weeks after the petition was
filed, ACS filed an investigation summary finding that the
allegations of drug use were unfounded, and noting the only
reason that Justin was removed was because of "ongoing domestic
violence in the home." Tr. 216. Even though ACS never determined
that there was a basis for the allegation of drug use, the
Family Court neglect petition against Ms. Norris was never
amended to eliminate this unfounded charge. Tr. 1197.
The Family Court determined that, in order to obtain the
parole of her son, Ms. Norris was required to attend individual
counseling for domestic violence, complete a parenting skills
class, and undergo drug testing. Tr. 1198. Beyond these
court-imposed requirements, ACS unilaterally required Ms. Norris
to maintain a job and a two-bedroom apartment. Tr. 1199. While
ACS assigned an agency to assist Ms. Norris in reaching the
goals, the agency did not give Ms. Norris any assistance. Tr.
Fortunately, Ms. Norris's private attorney was able to help
her locate and attend the requisite parenting classes and
domestic violence counseling. Tr. 1203-04. She was also able to
locate a two-bedroom rental apartment, although it was very
difficult to afford because Ms. Norris was also required to pay
for the classes she was required to attend, and had to support
her child with virtually no assistance from Mr. Figueroa. Tr.
1204. Neither ACS or the agency assigned by ACS to assist Ms.
Norris helped her pay for the apartment or for the classes. Tr.
On September 19, the day before Ms. Norris was scheduled to
appear in Family Court, the ACS caseworker visited her. The
caseworker told Ms. Norris that the new apartment looked good
and that if she "went into court and made an admission to
domestic violence" the next day, she would probably get her baby
back right away; if she didn't make an admission, the return
would take weeks. Tr. 1206. Ms. Norris refused to make the
untrue admission. Tr. 1207.
On September 20, the Family Court ordered that Justin be
returned to Ms. Norris. Days later, nearly five and a
half-months after he had been removed, Justin was returned to
Ms. Norris. Tr. 1208.
Predictably, the forced and unnecessary removal adversely
affected Justin's behavior. Ms. Norris testified that now:
He's very attached to me. He screams [whenever] I
even walk in the other room. He thinks that I am
leaving. Every time the doorbell rings he gets
hysterical. Especially when we go to my mother's
house, he latches on to me. He won't leave my sight
and he says I don't want to stay here. I want to go
home with Mommy. I think he's very afraid to be away
from me ever again.
As of the time of trial, the neglect petition against Ms.
Norris had yet to be dismissed. Tr. 1210.
Crystal Rhodes is the mother of two children, Alfonso, age
five, and Alazia, age three. Ms. Rhodes had been battered by the
children's father, Alfonso Washington, and had obtained orders
of protection against him in March of 1999 and October of 2000.
Ex. 102. On October 30, 2000, ACS received a referral from the
State Central Register concerning Ms. Rhodes and Mr. Washington.
Tr. 216. The referral indicated that Ms. Rhodes had not appeared
at a ...