Why Judges Refuse to Reunite Children of Color with Their Families

By Woody Henderson

There have been many debates; on the unreasonable length of time it takes to reunite with their families the children of color once placed in foster care by (ACS) the Administration for Children's Services, especially in low-risk cases.

At a recent Fordham University conference on child welfare, a family court judge said the court is slow in returning children to their parents in low-risk cases because three years down the road these same children may end up as statistics: being killed, abused, or severely neglected by their parents. This statement is akin to fortune telling and robs the parents of the presumption of innocence, which is in itself unconstitutional: it also ignores the fact that the very fears the judge was referring to could not be present in cases classified as low-risk.

This philosophy could explain why the average length of stay for a child in foster care in New York City is over four years, more than twice the national average.

Connecting that to the increasing rate of adoptions generated from low-risk cases in communities of color and driven by (ASFA) the Adoptions and Safe Families Act, one could conclude this logic is directed at destroying families of color. I emphasize "families of color" because over 98% of the families affected are Black or Latino. If similar practices were taking place in white communities, there would be an uproar that would shake the very foundation of society itself and all hell would break loose.

Queens County Family Court Judge Fran Lubow was re-appointed to the bench by Mayor Giuliani in spite of a recommendation by the Association of the Bar of New York that she not be. In their report they said, "There were serious problems relating to the Judge's demeanor and temperament and inappropriate treatment of persons who appeared before her, both un-represented litigants and lawyers?"

In one instance using the philosophy of protecting children of color from their own families, Judge Lubow has kept a 13-year old boy in foster care for over three years. She told the boy's mother she was going to keep her son, an honor student who had never been in trouble, from becoming a criminal like the rest of them...referring to young Black men. These types of cases are a much clearer example of racial profiling than the percentages used to prove there was racial profiling by the police in New York and on the New Jersey Turnpike. Even worse It also involves the unlawful separation of children from their families based to often only on hearsay.

Family court judges have the final say on how long and why a child is held in the custody of ACS. These judges are more at fault for this travesty of justice disproportionately affecting communities of color than the poor caseworkers at ACS, who are on the front lines and in many ways themselves victims. Caseworkers are often forced by supervisors and ACS lawyers to operate under the philosophy "When in doubt, take them out," instead of "when in doubt find out."

Some caseworkers say they are often told to rewrite investigative reports to reflect what the judge needs to rule in ACS's favor. Since most judges in family court don't talk to the caseworkers or the children involved or ask either of them direct questions, they deprive themselves of important data based on observations by the investigating caseworkers or the children that could help in making fairer decisions.

This, lack of information along with the high percentage of former prosecutors appointed to judgeships in family court by Mayor Giuliani, has dealt devastating blows to families of color and subsequently to society as a whole.

The prosecutorial background of family court judges may contribute to why so many of them seem to look at litigants as criminals or potential criminals. Like everyone else, judges' experiences and backgrounds can have an affect on their decision making.

For example, Sandra Bookman of ABC News and I sat in on a case brought before Queens County Family Court, Judge Stephen Bogacz, a former prosecutor appointed by Rudolph Giuliani. A seven-year old boy had just been removed from his school and placed into foster care because of a report by the school to ACS that the father refused to take the boy for an eye exam. The child however had 20-20 vision and the father had taken him for an eye exam, but the school or ACS had misplaced the records.

Before the judge called the case, the father showed the caseworker the doctor's eye exam report. When the father's attorney questioned the caseworker under oath, she testified to making a mistake in removing the child and agreed the child would be better off with his father rather than in foster care. The ACS lawyer disagreed with his own caseworker and requested the judge not release the child because they had come across other information related to the child that they wanted to investigate. This new information had nothing to do with the child's safety or the original reason the child was taken into custody. The judge however, complied with the ACS lawyer's request, and refused to reunite the child with his father.

The new questions raised by the ACS attorney referred to educational neglect, which even if proved, presented no risk or danger to the child. Plus, the removal of the Child without a court order in the first place was unconstitutional. The judge nevertheless went along with the ridiculous request of the ACS attorney.

Neither Sandra Bookman nor I could believe what we had just witnessed. The judge of course was unaware the press was in the room. I don't believe the presence of the press would have changed his decision to detain the child; however, it might have changed the arrogant demeanor he displayed toward the court appointed attorney representing the father.

Ultimately all charges proved unfounded and seven and a half months later the child was reunited with his father.

There was no legal or moral justification for the trauma this family was put through. Rather than the facts before him at the start of the trial the judge based his decision on, suspicions offered by the ACS attorney after the fact. Certainly in this case, logically, the only reason for the ACS attorney to overrule his own caseworker, who at least had first-hand contact with the child and his father, would be the attorney was more focused on winning the case than seeing to the best interest of the child.

Mayor Giuliani is a former prosecutor and all ACS attorneys' work for an agency that has a commissioner, Nicholas Scoppetta, who is also a former prosecutor and appointed by Mayor Giuliani. The procedures ACS attorneys must follow when presenting cases in family court are set by Joseph Cardieri, a Deputy Commissioner for ACS and General Counsel for Legal Services at ACS, he was also appointed by Rudolph Giuliani.

At last count, at least 13 of the 20 judges appointed to the family court by Mayor Giuliani are former prosecutors. So, the family court and ACS are both top-heavy with former prosecutors. This to some degree may explain why so many parents feel they are treated like criminals in family court and why their children so often end up in foster care, and some even robbed of their birthrights, but, that's a story for another day.

The only thing that would be worse for people of color who make up over 98% of the cases brought before family court is if Mr. Giuliani appoints his own cousin, Joseph Cardieri, to the bench of family court, as is rumored. Of course, that would be an outright conflict of interest. Even Rudolph Giuliani can't be that arrogant.

So, the reason it takes so long to reunite children of color with their families is that the same person Mayor Giuliani) who appoints those who run the agency that charges their parents with abuse or neglect also appoints the judges who decide if those parents are guilty of the charges of abuse or neglect. It all comes back to what the Mayor wants, or don't want, and that's the main reason Judges refuse to reunite children of color with their families. As the great Black news commentator, ` Roy Wood would say, "Now, run and tell that"