A worker there, alarmed, called 911. When NYPD officers arrived, they arrested R. The children's father was incarcerated at the time, so the children were taken to an ACS office and placed in foster care. R's five children remained in care while the charges of child abuse against R were investigated.
In December 2010, the city's Administration for Children's Services (ACS) determined that the charges against R were unfounded and declined to prosecute a child abuse case. The children, split between two foster care placements, had regular visits with their mother, who by then was staying in a shelter for victims of domestic abuse. All five children repeatedly said they wanted to go home to live with their mom. In October 2011, a Family Court judge urged that the children return to their mother, asking, "Why isn't this happening?" during a foster-care permanency hearing. The issue was real estate. A nonprofit agency charged with finding suitable housing for the family did not secure an apartment in the time-frame the court had ordered; when R later found one within the allotted budget, the agency declined to provide a housing voucher—until R wrote to the agency's director, who approved it. But as of this March, the children were still living in foster care. The family's next hearing is set for late May.
"It's two years, based on nothing," says a mental health professional who evaluated R but was not permitted to testify in her case. Two years is more than half the lifetime of R's youngest child, who was 3 when she was taken from her mother and placed in foster care.
Finding what 's 'founded'
Scene of some of Family Court's most evocative and disheartening episodes, child protective courtrooms hear cases of abuse and neglect, based on ACS determinations that cases are "founded," or substantial enough to prosecute. Children who suffer sexual, emotional, physical or mental abuse may be the subject of child protective cases. So may children who, after at least six months in the care of a foster parent, are freed for adoption when their parents elect or are forced to terminate their parental rights. Rarely, there are voluntary surrenders of children—as when an overwhelmed grandmother comes to the court for relief. This is also the specialty that oversees adoptions.
Children are not routinely present in hearings about alleged abuse or neglect. (They're also absent from most custody and support hearings, although they are front and center in juvenile justice cases.) In child protective cases, judges may speak with children and youth "in camera"—generally, in chambers or another private setting—and consider their conversation equivalent to testimony. This is to protect children from the demands of the courtroom, but while it makes intuitive sense, it also leaves the odd impression of a system that's functioning to protect children without the main beneficiary, the child, involved in the process. It's not the only odd thing about the child protective specialty of Family Court. The rules of evidence, of testimony, of confidentiality and against self-incrimination all differ from those of conventional criminal or civil court. And the testimony that's offered in parts of Family Court can be accepted as sworn testimony—essentially, equivalent to direct testimony before a judge and jury—in criminal and civil proceedings.
Two traits separate the child protection courtrooms from others in the Family Court system. One is the critical and complex role played by ACS. The other is the unique potential for abuse and neglect cases, steeped as they are in sadness, to burn out everyone who comes into contact with them.
Understanding child protective courts requires grasping those distinct characteristics. It also requires appreciating that, as in the courtrooms that deal with custody and support, the caseload in the abuse-and-neglect section is overwhelming—and has been for decades.
Decades of concern about caseloads
In 1987, at the 25th anniversary of the Family Court Act, New York State's chief judge, Sol Wachtler, decried a 300 percent rise in child neglect cases in New York City over three years, from less than 4,000 in 1984 to more than 13,500 in 1987. Wachtler said Family Court was "overwhelmed by a new generation of children more abused and neglected than ever before," with much of the rising tide attributed to the arrival of crack cocaine, linked to a 50 percent climb in abuse and neglect cases.
"There is no more important court in the state than Family Court," Wachtler told a gathering of more than 200 judges in 1987. Yet, Wachtler added, Family Court is "the stepchild of the state system," a vital mechanism oppressed and ignored, suffering overloaded dockets and underfunded operations, and compromising the health and well-being of a generation of city children.
Three years later, the Citizens Committee for Children called on the state to add new judges to the burdened court, declaring, "The Family Court in New York City is under siege."
But no new judges were added in 1990. None have been added since then, despite astronomic increases in caseload; statewide, dockets topped 2.5 million in 2009. Today, many of the children Wachtler worried about are parents with children of their own. The 13,000 abuse cases he lamented in 1987 have swelled to nearly 52,000 in 2010, the last year for which statistics are available.
Judicial staffing in Family Court is the same today as was prescribed in the 1962 Family Court Act: A total of 47 judges are assigned to the five boroughs of New York City, assisted by 38 magistrates to hear cases related to child support, which makes up about 40 percent of the Family Court caseload.
The number of judges and magistrates is set by the Family Court Act. But referees, who hear abuse and neglect cases in lieu of judges (and only with the permission of all parties involved), are employees of the court and can be hired at will, provided resources are available: There are 43 in the city at present. And in every borough, loaner judges borrowed from civil or criminal court sit on the Family Court bench.