Child Welfare Limbo: Covid-19 Puts Family Reunifications On ‘Indefinite’ Hold
By Abigail Kramer
Amid the chaos caused by Covid-19, New York City parents with kids in the child welfare system have lost access to the Family Court judges normally entrusted with protecting their rights. In at least one case, the City's child welfare agency held custody of a child for more than a week without seeking permission from a judge, according to family members who were desperate to bring the child home.
Under normal circumstances, the Administration for Children's Services (ACS) must seek permission from a judge before removing a child from his or her family. If the agency believes the child is in imminent danger at a time when Family Courts are closed, it can make what's known as an "emergency removal," but must seek approval from a judge on the following business day. The family is then assigned an attorney, who can – and often successfully does – contest the removal in court and petition to return the child home.
In response to the spreading coronavirus, the City’s Family Courts have closed their buildings and dramatically reduced their caseloads. Judges are now holding hearings by phone and video, only on “essential/emergency” matters, according to a statement from the New York State Office of Court Administration, which did not respond to request for further comment for this story.
In practice, judges have continued to hear petitions from ACS seeking to remove children and place them in foster care. But they are not willing to hear motions by parents seeking to return children to their families, according to attorneys who represent parents.
As a result, the attorneys say, children may be held unnecessarily, away from parents who have little legal recourse or protection.
“ACS continues to take children away from their parents. Yet the court has built a system where government power will go unchecked and children and parents have almost no ability to challenge their continued separation,” writes Emma Ketteringham, the managing director of the Family Defense Practice at The Bronx Defenders, in an emailed statement.
“This approach denies Constitutional rights, does irreparable harm to the children the system claims to protect, and is a message to the world that the families in the child welfare system, the vast majority of whom are low-income and of color, are not ‘essential,’” Ketteringham writes.
The situation has resulted in confusion and dismay for families. If a parent goes to a Family Court building, they will find a sign on the door that offers a phone number for people seeking an order of protection, but no contact information for child protective matters.
Instead, attorneys are relying on ACS to share parents’ phone numbers—which often happens less than an hour before the agency files a motion with the virtual Family Court. Hearings are then held over “Skype for Business.” Since many families don’t have access to the necessary technology, attorneys say they’re resorting to holding cell phones up to computer speakers, through which parents strain to hear the decisions made about their children.
ACS was unable to immediately say how many children have been removed from their homes since the Family Courts reduced their capacity. However, the agency continues to be able to request that children in foster care be returned home, according to an agency spokesperson. "If all parties agree to the return of a child or modification of any order, the parties email a signed stipulation and the judge will review it and schedule a hearing if necessary."
Typically, ACS files new petitions in Family Court involving about 1,000 children each month. In addition, Family Court judges oversee dozens of conferences and hearings each day that are necessary to move forward with ongoing cases. For example, they order foster care agencies to provide parents with services that will help close their cases; they approve increased and overnight visits between parents and children; and they order trial discharges from foster care.
Under the best of circumstances, Family Court dockets are overwhelmed, with hearings that often stutter through months of postponements and delays. With all "nonessential" matters on indefinite hold, advocates worry that the Courts will end up with an impossible backlog, and that children currently in foster care will remain there for months, or even years, longer than otherwise necessary.
"Hundreds of children are going to stay separated from their families indefinitely given these court delays, even though if a judge was to hear the facts of the case, they could probably go home to their families," says Lauren Shapiro, the director of the Family Defense Practice at Brooklyn Defender Services.
At least one child in Queens was kept for a week in the agency's Children's Center with no court oversight at all, according to family members.
The child, a 14-year-old named Ruby who is severely autistic, came under ACS investigation in early January, after her mother was hospitalized and then transferred to a rehabilitation facility following a stroke. Ruby remained with her 24-year-old sister, but had frequent outbursts at school and home that resulted in emergency room visits and hospital stays.
(Ruby's adult relatives requested anonymity for this story, but shared multiple documents from ACS that corroborate their account of the investigation and the child's week-long placement in the Children's Center.)
Throughout its two-month investigation, ACS agreed to let Ruby remain at home, under the care of her sister and an adult cousin who took her on weekends. The agency also said that it would seek services, such as a home health aide, to help the family cope until Ruby's mother could return home. But those services never materialized. Instead, ACS picked Ruby up from a hospital stay on March 19th and brought her to the agency's Children's Center in Queens.
Because the case was never brought to Family Court, the family had no attorney and nowhere to turn for help. "It was horrible," says Ruby's cousin. "I would talk to her on the phone and she kept saying, 'Come get me, I'll be good, please come get me.'"
Finally, after a week, Ruby was released to her cousin's home. The cousin, who is already caring for her own four children and a niece – all of whom are home full-time, now that schools are closed – was told not to be optimistic about receiving help. "Services are shut down because of the virus, so the caseworker said I'm pretty much on my own."
"It's a lot," the cousin said. "I'm really not trained to give her the help she needs. But I was not going to leave her in the system."
UPDATE:
After publication, a spokesperson for the Office of Court Administration wrote in an emailed statement that between March 26th (when the courts moved to remote hearings) and March 31st, Family Court judges heard eight petitions from ACS seeking the removal of children. Of those eight, two resulted in children being removed from their homes. In the other six cases, judges denied ACS's petition and the children remained with their families.
"These initial hearings are critically important because they serve as the mechanism for ensuring that children are only removed when necessary to protect their life/health. The court continues to build its remote capabilities to address matters that the family court handles for the benefit of children and families across NYC," the spokesperson wrote.