Are Family Courts and Foster Care Destroying Communities Of Color Even More Then Police Brutality?

By Woody Henderson

The question 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.

Since 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 family.

A 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.

Part 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 begin.

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.

The 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 and family.

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.

On 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.