In re Nicholson

• Decision Date: 03 January 2002
• Docket Number: No. CV 00-2229, CV 00-5155, CV 00-6885.,CV 00-2229, CV 00-5155, CV 00-6885.
• Parties: In re Sharwline NICHOLSON, et al.
• Court: U.S. District Court — Eastern District of New York

Page 182

181 F.Supp.2d 182

In re Sharwline NICHOLSON, et al.

No. CV 00-2229, CV 00-5155, CV 00-6885.

United States District Court, E.D. New York.

January 3, 2002.

Lansner & Kubitschek, New York, By David Lansner, Carolyn Kubitschek, Sanctuary for Families, Battered Women's Legal Services, New York, By Jill Zuccardy, for Plaintiffs Subclass A.

Legal Aid Juvenile Rights Division, Juvenile Rights Division, By Monica Drinane, Leslie Abbey, Barrie Goldstein, Kay G. McNally, Judith Waksberg, Henry Weintraub, Lawyers for Children, New York, By Karen Freedman, Karen Walker Bryce, Betsy Kramer, for Plaintiffs Subclass B.

Martha Olson, Citizens' Committee for Children, Riverdale, Next Friend of Children in Subclass B.

New York City Law Department, Office of the Corporation Counsel, Brooklyn, NY, By Michael D. Hess, Jonathan Pines, Martha Calhoun, Carolyn Wolpert, Daniel A. Shacknai, Administration for Children's Services Deputy General Counsel, New

York, for City of New York and Administration for Children's Services.

NYS Attorney General, New York, By William H. Bristow III, Robert Kraft, for State of New York and Governor George E. Pataki.

Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, D.C., By Greg E. Haber, Fernando R. Laguarda, Noam B. Fischman, for Amici National Network to End Domestic Violence and National Network to End Domestic Violence Fund.

Law Offices of Joanne C. Fray, Lexington, MA, By Joanne C. Fray, Helene Sullas Huggins, for Amicus National Coalition for Child Protection Reform.

Missouri Coalition Against Domestic Violence, Jefferson City, MO, By Nina Balsam, for Amicus Missouri Coalition Against Domestic Violence Against Women.

Davis, Polk & Wardwell, New York, By Frank S. Moseley, Zachary S. McGee, Joan Loughane, Kelli J. Stenstrom, Of Counsel, New York County Lawyer's Association, New York, By Craig A. Landy, Norman L. Reimer, for Amicus New York County Lawyers' Association.

Ohio Domestic Violence Network, Columbus, OH, By Alexandria M. Ruden, for Amicus Ohio Domestic Violence Network.

AMENDED MEMORANDUM, ORDER AND PRELIMINARY INJUNCTION

WEINSTEIN, Senior District Judge.

This is a class action brought primarily on behalf of women who are battered and who, without fault on their part, have their children removed by the Administration for Children's Services (ACS), and on behalf of children so removed. See Nicholson v. Williams, 202 F.R.D. 377 (E.D.N.Y. 2001) (memorandum and order certifying class action and dividing class into a subclass A for mothers and a subclass B for children).

The federal court intercedes with regret. It recognizes the enormous strides the State and City of New York have made in ameliorating and addressing problems of domestic violence. See, e.g., N.Y.L.J., Nov. 27, 2001 at 1 (reporting the opening of the Bronx Integrated Domestic Violence Court, which incorporates the "One Family/One Judge" concept initiated by Chief Judge Judith S. Kaye, where a single judge addresses the multiple legal issues — criminal, family, and matrimonial — that can arise when domestic violence occurs). Yet, serious constitutional defects still exist in this evolving system, leaving no legal alternative of abstention under Article III and the Fourteenth Amendment of the United States Constitution.

Plaintiffs have moved for a preliminary injunction. Extensive evidentiary hearings have been completed on the question of whether a preliminary injunction should be granted and, if so, its form.

Because of the serious and imminent danger to plaintiffs caused by defendants' continuing constitutional violations, a preliminary injunction is now issued. An extensive explanatory memorandum will be issued as soon as other work permits.

Two subclasses have been certified. Subclass A consists of:

All persons subject to domestic violence or its threat who are custodians of children, legally or de facto, if:

1. the children reside or resided in a home where battering was said to have occurred, but where the children themselves have not been physically harmed by the non-battering custodian or threatened with harm by the non-battering custodian, or neglected by the non-battering custodian, and where protection of the children and their best interests can be accomplished by separation of the alleged batterer from the custodian and children or by other appropriate measures without removal of the children from the non-battering custodian; and if,

2. the children are sought to be removed or were removed by the New York City Administration for Children's Services (ACS) or other governmental agency without court order (even if removal is ultimately approved by a court), wholly or in part because the children reside in a home where battering of the custodian was said to have occurred; or

3. the custodian is named as a respondent by ACS in child protective proceedings by ACS under Article 10 of the New York Family Court Act in which removal may be sought (even if removal is ultimately approved by a court), wholly or in part because the children reside in a home where battering of the custodian was said to have occurred; or

4. the custodian is denied adequate counsel:

a) in proceedings required by law before ACS which may confirm or lead to removal of a child or failure to promptly return a removed child; or

b) in court proceedings where ACS is a party, which may confirm or lead to removal of a child or failure to promptly return a removed child.

The definition of subclass A has been slightly altered since it was first certified, with no substantial effect.

Subclass B consists of:

All children who are or were in the custody of a custodian in subclass A:

1. who have been or are likely to be removed by ACS or other governmental agency since December 16, 2000; or

2. who were removed prior to December 16, 2000 and continue to be in removed status after December 16, 2000; or

3. who have not been returned to the custodian as soon as possible after December 16, 2000 pursuant to a court order, where:

a) ACS has no discretion to delay the child's return; or

b) ACS has discretion to delay or condition the child's return, but delay or conditions are not necessary for the protection of the child.

The provisions of this preliminary injunction are designed to protect these subclasses against the unconstitutional conditions and acts they are subject to. Subclass B makes no claim against the State; subclass A will obtain all the protection it seeks without any preliminary order directed against the State. The fact that a child is not within subclass B does not deprive the custodian of her rights as a member of subclass A. Although subclass A may include males, most members are female. The definition of subclass B is designed to take into account the order of Marisol A. v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.1999) (approving settlement).

ACS has systematically and repeatedly removed children of battered mothers for the reason that mothers "engaged in" domestic violence by being victims of such violence. Following removal, mothers have had to overcome delays, difficulties in obtaining effective counsel, and a lack of assistance from ACS, the police, or other organizations in obtaining effective protection against the batterers before the children were returned to the mother. In many cases the mother has been extremely vulnerable, lacking independent economic resources, social and psychological support systems, or the capacity to utilize administrative and judicial systems effectively for self-protection of her rights and those of her children. In some cases, even after the children are returned, ACS pursues neglect actions against the mothers in Family Court solely on the ground that they were victims of domestic violence.

Practices and policies of ACS violate the constitutional rights of both mothers and children. Parents have a well-recognized interest in the "care, custody, and control of their children [that] is perhaps the oldest of fundamental liberty interests...." Troxel v. Granville, 530 U.S. 57, 62, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The interest of children in preserving family integrity is also constitutionally protected. See, e.g., Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). Substantively, parents and children have a constitutional right not to be separated by the government unless the parent is unfit to care for the child. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("We have little doubt that the Due Process Clause would be offended `[if] a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.'") (quoting Smith v. Organization of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring in judgment)); Nicholson v. Williams, 202 F.R.D. 377 (E.D.N.Y.2001). Procedurally, parents and children have a constitutional right to due process of law before they are separated. See, e.g., Tenenbaum v. Williams, 193 F.3d 581, 596 (2d Cir.1999) ("[I]t is unconstitutional for state officials to effect a child's removal on an "emergency" basis where there is reasonable time safely to obtain judicial authorization consistent with the child's safety."). The evidence to date overwhelmingly demonstrates that the defendants have violated these constitutional rights.

Exigencies of the case require a preliminary injunction. Children and parent-child relationships are particularly vulnerable to delays in repairing custodial rifts; even relatively short separations may hinder parent-child bonding, interfere with a child's ability to relate well to others, and deprive the child of the essential loving affection critical to emotional maturity. A preliminary injunction is granted for the purpose of ensuring that 1)...