City
Settles Suit Over Separating Abused Mothers From Children
By LESLIE KAUFMAN
Published: December 18, 2004
The city (New
York) settled a long-running class-action lawsuit by victims of domestic
violence yesterday, essentially conceding that children could not
be placed in foster care just because their mothers had been abused.
The settlement
was no surprise as it came just months after the state's highest court
had ruled that the city could not remove children in cases where the
sole problem in a family was domestic violence.
Both parties
to the lawsuit and the judge agreed not only that removals were not
the right answer, but also that the city's practice had reformed so
much in the years since the suit was brought that court relief was
no longer really necessary.
"The city
has come a long way since we first filed the lawsuit," said Carolyn
A. Kubitschek, a lawyer for the plaintiffs. "We think they are
serious about attempts to change practices. They said they could do
it without a court order, and so we said, 'Let's try.' "
When the lawsuit,
Nicholson v. Scoppetta, was certified as class action in 2001, the
city denied that it had a practice of taking children into foster
care solely because their mothers had been victims of domestic violence.
Yet the city maintained that if it had such a practice, it would be
perfectly legal.
But in January
2002, the Federal District Court in Brooklyn disagreed, ruling that
city agencies had engaged in "widespread and unnecessary cruelty"
against victims of domestic violence, and it issued an injunction
preventing child welfare workers from removing children from homes
solely because their parents are abused.
The city appealed
to the United States Court of Appeals for the Second Circuit, which
in turn asked for advice from the state's highest court. The appellate
court agreed with the lower court that such removals in cases where
the sole parental vice was to have been abused would be wrong.
The court then
added that removing a child from its primary guardian in any case
should be done with court review except in the most extreme circumstances.
Because the federal
court heard the case, many think Nicholson will influence practice
far beyond New York. "Unquestionably, Nicholson is a landmark
and will set precedent through the country," said Barrie Goldstein,
a lawyer with Legal Aid Society, who helped argue the appeal. "It
is already being widely cited. It was on the cutting edge."
City officials
were also calling the settlement a victory yesterday because it allows
the court injunction to lapse at the end of the year and because,
they said, it confirmed that the city's current case practices with
regard to domestic violence victims already met the court standard.
Since the court injunction, the city says, it has retrained workers
to be more sensitive to domestic violence and has instituted more
rigorous levels of review internally before removals take place in
such cases.
John B. Mattingly,
the commissioner of children's services, said: "This agreement
will not change current practice at all. But that doesn't mean we
don't need to hold onto the improvements we have made as a result
of the lawsuit."
In fact, according to the settlement, the city's practices are still
subject to a nine-month probationary period after the injunction elapses.
If at any time during that period plaintiffs believe the city is violating
the settlement, they can ask the court to reactivate the case. "Believe
you me, we will be watching closely," Ms. Goldstein said.
