When injustice hides in plain sight

The New York Advisory Committee to the U.S. Commission on Civil Rights is examining racism in the New York family policing system (a more accurate term than “child welfare” system).  New York’s institutional providers of family defense prepared in-depth written testimony that is a report in itself.

As I read it, I had to stop every few pages.  Just reading the first-hand accounts of soul-crushing injustice visited upon overwhelmingly poor nonwhite families was tough.  Yet these families have to live it every day.

I’ve excerpted part of one section below – the section on what, in New York, is called the family court.  That’s not because the injustices chronicled in that section are worse than the rest – but they are easier for the rest of us to see for ourselves.

Anyone in New York – especially any journalist -- who doesn’t believe what these lawyers are telling us can head for the family court in their borough or county and watch.  For more than 25 years in New York State, by order of that state’s highest court, the Court of Appeals, these hearings have been open.  

Unfortunately, New York reporters almost never take advantage of this opportunity.  In fact, in 2011 a New York Times reporter started showing up just to see what would happen and was repeatedly turned away.  Judges and court officials either never knew, or forgot, that the hearings were supposed to be open.  The Court of Appeals had to send them a reminder. 

So now might be a good time to put the judges to the test again – and this time, stick around to see the injustice that’s been hiding in plain sight. 

And not just in New York.  In large part because of the work of New York’s family defenders, at least in New York City the system is one of the least horrible in America.  Wherever you are, it’s probably even worse.  And if where you are happens to be Texas, Florida, Michigan, Missouri, Washington State, Oregon, Colorado and, for media only, Illinois, you can go see just how awful things are.  Admittedly, in some of these courts it may take time before an observer can see the difference in how Black and white families are treated – because it may take awhile before you see a white family in these courts. 

Meanwhile, here’s some of what New York City’s family defenders see every day.  And here’s something else to think about as you read it:  

One of New York’s, indeed the nation’s, most important, and bravest, anti-racist voices in the field, Angela Burton, was fired from her job with the New York State court system after she submitted an outline of remarks she planned to make to a meeting of the New York Advisory Committee.  Her bosses felt her remarks would “undermine public confidence in the court’s impartiality.” 

EXCERPTS FROM THE WRITTEN TESTIMONY OF NEW YORK CITY FAMILY DEFENDERS [Emphasis added.] 

The structure and practices of family court and the laws family court judges apply harm families and act as a force of destruction to Black communities. Too often family courts rubber-stamp the decisions of the family policing agencies, and fail to function as the intended check on the system. … 

From its failure to follow governing laws and ensure due process, to its prioritization of expediency over fairness, humanity, and just outcomes, the family court functions as an arm of state power, rather than a neutral arbiter of fairness and justice. … On a regular basis our clients face the following harms and disregard for their humanity and dignity in family court:  

1. Being called by generic labels like “mom,” “birth mom,” “dad,” and “paramour,” instead of by their actual names, and the use of other dehumanizing language;

 2. Having cases scheduled and called with no regard whatsoever of the parent’s schedule, obligations, or the arduous demands of court ordered services; 

3. Experiencing the other players in the system insensitively laughing, joking, rolling their eyes, and making light of the proceedings in total disregard for the profound impact the proceeding is having on them and their family; and 

4. Being subjected to the reliance on tropes and narratives deeply rooted in this country’s history of anti-Black racism, classism, and other forms of structural oppression. 

From the moment of a parent’s first contact with the family court, the system dehumanizes parents and families and deprives them of the opportunity to be fully heard. While family investigations go on for days, weeks, or even months prior to the filing of allegations in family court, parents are typically unable to meet their defense counsel until the day the petition is filed (sometimes even on the second or third appearance) and often only moments before a family is called before the court for the first time, … 

There is no legal obligation for [the Administration for Children’s Services] ACS or prosecutors in family policing cases to provide exculpatory or exonerating evidence. This results in presentations to the court that are extremely one-sided, resembling a diatribe making a case against a parent without the balance that could give the court an accurate picture of the family. 

The unnecessary and inexplicable, and in our view intentional, delay in providing information is so normalized in the courts, that we are greeted with astonishment when we propose that we receive the information earlier. 

Time and time again, we have seen cases with similar facts have vastly differing results, with the only measurable distinction between the families being the color of the parent’s skin. For example, when allegations of neglect relate to a one time incident of excessive corporal punishment, white and Asian children are more likely to remain at home with their families, while Black families are consistently separated, with the court relying on racist tropes that the parent is “angry” and unable to control their actions. The data also supports our observations in court, showing that although the percentage of reports leading to [court] filings for Black parents and Latine parents are similar, the reports made against Black parents are 50% more likely to result in removal than those made against Latine families. 

From their first appearance in court, Black families are not looked at holistically, and are met with suspicion and contempt. For example, expressions of emotion by a Black parent whose children are being torn away are often viewed by both the court and caseworkers as evidence of a larger mental health or anger issue, consistent with racist perceptions and tropes about Black people—rather than recognizing an emotional response to family separation as fundamentally human. 

A parent who is deferential to the agency and the court – who is “polite,” easy to work with, and who expresses “insight” in terms that they admit full wrongdoing – is more likely to have a swift and favorable resolution. In contrast, a parent who expresses emotions about the separation of their families, who questions unreasonable directives from the agency and court, and who raises concerns about the care their child receives in the foster system, will often be viewed as “angry,” “difficult,” “non-compliant,” and “lacking insight,” which will delay reunification and progress in family court. 

Prosecuting attorneys attend court conferences intended to discuss settlement and visitation completely unprepared, without settlement offers or positions on expanding visits or other plans for achieving reunification. Cases with extremely weak allegations often unnecessarily take months or years to resolve, and then only after attorneys for parents force the agency’s hand by filing motions to compel discovery or to dismiss. The ACS attorney will then often withdraw their petitions or offer a very short adjournment in contemplation of dismissal, ultimately subjecting families to months or years of unnecessary surveillance and family policing involvement. 

Prosecuting attorneys regularly fail to provide discovery until the eve or day of trial, making it difficult, if not impossible, for defense counsel to advise parents about the potential risks and consequences of settlement, or to be prepared to move forward with trial. Parents regularly take off work to appear in court for a fact-finding hearing, only to find out that the ACS attorney failed to subpoena a witness or essential records, or is simply unprepared to move forward. Adjournments are liberally granted by the court in these circumstances, despite the ACS attorney’s lack of diligence. The resulting delays subject families to needless separation, unnecessary surveillance and stress, and demonstrate an utter disrespect for families. 

While these delays are intolerable and grounded in a racist disregard for the time and well-being of Black and Latine families, the family court’s efforts to address them also often display the same racist disregard. For example, while adjournments are repeatedly granted to ACS, a parent’s request for an adjournment, no matter the basis, is routinely denied. A parent’s absence will lead to an immediate default, which carries with it negative legal consequences, while the court will grant multiple adjournments when the ACS worker is repeatedly absent, even when their participation is essential. 

[O]ften, Black parents are treated across the board with greater skepticism and distrust. Courts question the intentions of Black parents, their love and commitment to their children, as well as their willingness and ability to follow court orders while white parents are generally given the benefit of the doubt and trusted to overwhelmingly have good intentions and stronger protective capacity.