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Battered Women And Their Fight To Keep Their Children


When severely battered women Sharwline Nicholson, Ekaete Udoh and Sharlene Tillett went to court on behalf of themselves and their children, they began a legal journey that would eventually become a class action lawsuit, travel through the federal and state court systems of New York and have reverberations around the country. (See account in Gotham Gazette's children's topic page December update) The litigation, now in its fourth year, involves the rights of victims of domestic violence whose children were taken from their custody by the City of New York's Administration for Children's Services (ACS) even though the mothers had not been found unfit, neglectful or to have engaged in domestic violence. They were simply victims of assault by domestic partners. The practice and policy of removing children who had not themselves been assaulted, and who had not been harmed by their victimized parent meant some battered women might resist calling the police for protection for fear it would lead to the removal of their children.

Following extensive hearings, federal judge Jack Weinstein of the United States District Court for the Eastern District of New York, found that "the evidence reveals widespread and unnecessary cruelty by agencies of the City of New York toward mothers abused by their consorts, through forced unnecessary separation of the mothers from their children on the excuse that this sundering is necessary to protect the children."

Referring to the legal maze in which the mothers are thrown as Kafkaesque, Judge Weinstein detailed the ironies and inequities of blaming the victim who is usually powerless to control the violence in the home. "The limiting factor on what a battered mother does to protect herself or her children from the batterer is usually a lack of viable options, not a lack of desire," the judge wrote, referring to institutional protection and support for victims of domestic violence. As advocates for battered women have argued for more than thirty years, the judge said, "Accusing battered mothers of neglect aggravates the problem because it blames the mother for failing to control a situation which is defined by the batterer's efforts to deprive her of control. ...It's an ill-conceived way to think about this issue of neglect and it further victimizes women who are victims of domestic violence."

The decision in the case, which is now known as Nicholson v Scoppetta, forbids the Administration for Children's Services and various other defendants from removing children who had not been physically harmed, threatened or neglected by the mothers who were victims of assault.. While the city took the position that removal was consistent with protecting the children and that failing to prevent their witnessing violence, was itself a form of neglect, Judge Weinstein found that the Constitutional rights of the mothers and the children had been violated . The court recognized the parental interest in the "care, custody and control of their children as perhaps the oldest fundamental liberty interest". Unless the parent is unfit to care for the child, the judge wrote, "there is a constitutionally protected interest in preserving family integrity and a right not to be separated by the government." Judge Weinstein took particular exception to the failure to focus on removal of the batterer/assailant from the home, provide alternatives for the mother and children, and recognize removal of the children as the most extreme and undesirable resolution to domestic violence, one which would, in his view, and the experts he relied upon, have greater negative impact on the children than would the witnessing of the original violence. He concluded that removing children under the circumstances of these cases should be the very last resort.

In some cases Family Court orders of removal were obtained; in others ACS proceeded without court intervention. Both situations involve policy decisions and interpretations of the Family Court Act and what constitutes neglect, whether removal is available where there is no "imminent risk or imminent danger to the child's life or health, and how these factors are balanced with the "best interests of the child."

On defendants' appeal to The United States Court of Appeals for the 2d Circuit, the federal appeals court permitted the injunction to stand but did not reach a conclusion. Rather, in late 2003, the circuit court identified several open legal questions, and referred them to the New York State Court of Appeals for both constitutional reasons and in deference to the state court's expertise in family law. The questions yet to be answered are, under state law:

• Is the definition of "neglected child" meant to include instances in which the sole allegation of neglect is that the parent or guardian allows the child to witness domestic abuse against the caretaker? (It has previously been determined that the batterer can be charged with endangering the welfare of a child by assaulting the victimized parent.)

• Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or caretaker constitute danger or risk to the child's life or health as defined in the Family Court Act?

• Does the fact that the child witnessed such abuse suffice to demonstrate that removal is necessary in the child's best interests, or must the child protective agency offer additional particularized evidence to justify removal? The key question appears to be whether the emotional trauma of witnessing violence is the type of danger that is sufficient to warrant removal from the non battering spouse.

It is not known when the New York Court of Appeals will address the questions. However, according to Carolyn Kubitschek, counsel to the Nicholson plaintiffs, the city is complying with the injunction.

Emily Jane Goodman is a New York State Supreme Court Justice.

 

 

 

 

 

 

 

 

 

 

New Rules for the Homeless


Families sleeping on the floor of the Emergency Assistance Unit in the Bronx. Although people no longer stay overnight at the facility, it remains crowded, with parents and children going through long waits to get housing. The people's faces are covered to protect their identities.
(Courtesy, Coalition for the Homeless)
Like most people, Evelyn Hennings likes to sleep lying down. But she doesn't have this luxury every night. For four months last year, Hennings, 49, slept upright in a white plastic chair at Grand Central Neighborhood, a midtown drop-in center where some 200 homeless adults, schlepping tattered bags of belongings, stop in daily for hot food and a place to sit.

In late September Grand Central found Hennings a rotating spot in a church bed, one of many that are swapped among the homeless individuals who use the city's drop-in centers. Hennings gets the bed four nights a week. The other three evenings, she's back in her chair. And yet, Hennings says, "being here is much better than being in a shelter."

Hennings, whom a Grand Central employee says has an undiagnosed mental illness, is among the many homeless adults who avoid the city's temporary residences while they search for permanent housing and jobs. She abandoned her bed in a Brooklyn shelter last May when a caseworker wanted to transfer her to a site offering specialized care for the mentally impaired. She can't remember how long she lived at the Brooklyn shelter but knows she was tired of moving. "I'm not interested in bouncing from shelter to shelter," she says.

Long-term shelter residents like Hennings make up roughly 17 percent of single adults in shelters and use about half of the resources. They are one of the targets of a new city policy called Client Responsibility Standards that aims to curb dependence on the shelter system and spark a sea change in the culture of the homeless. (For an article on programs for homeless families in New York see Stephanie Carberry's story on the Emergency Assistance Unit in the Bronx.)

So far, the program, which was officially launched in November, has had little effect. The city says it could eventually spur single adults to take more control over their lives and, simultaneously, alleviate crowding in the 49 adult residences. But the policy has evoked outrage from advocates, who worry it will force thousands of people, particularly the mentally disabled, into the streets.

THE NEW RULES

The standards allow shelter operators to evict residents for a minimum of 30 days if they break general rules, like those requiring sobriety, or do not follow their personalized set of guidelines requiring them to search for employment and housing. Until now, unruly adults who start fights, for example, or refuse to stay clean in a drug-free program, have merely been transferred to another shelter.

Client Responsibility, long sought by the city, comes as the number of homeless in New York continues to rise. On January 20, the city counted 38,583 homeless individuals, including 8,896 single adults. (On February 23, the city will conduct a survey to determine the number of homeless people on the streets.)

As a result of a 1981 court ruling, New York is the only city in the nation where homeless people have enjoyed the "right to shelter" - and so could not be evicted from the shelters. The Guiliani administration tried unsuccessfully to reverse the ruling. But last June an appellate court ruled that the city Department of Homeless Services could set rules and requirements for shelter residents to follow.

For a resident to be evicted, a caseworker must suggest it. Then, a social services director reviews the request and sends it on for endorsement by the department. There the assistant commissioner, the commissioner and a suspension committee examine the case. In the meantime, the resident can request a fair hearing and vow to change.

But despite these safeguards, some homeless advocates fear that Client Responsibility will discourage many who need shelter from seeking help.

The mere prospect of eviction after 30 days "will result in many individuals just saying, 'you know what, I'm just going to go to the streets,'" says Patrick Markee, a senior policy analyst at the Coalition for the Homeless, which brought the 1981 case.

FEARS FOR THE MENTALLY ILL

"We're very concerned about the safety of people, particularly people with disabilities," says Lauren Bhola-Pareti, executive director of the Council for Homeless Policies and Services, a coalition of shelter providers.

She and other advocates are particularly concerned about the mentally ill. Homeless services has about a thousand beds for mentally ill homeless, according to its own reports, perhaps fewer than is needed. Many shelters do not employ staff psychiatrists, and most caseworkers have little training in mental-health issues, says Susan Neibacher, executive director of Care for the Homeless, which provides mental health service in homeless facilities. She worries that many mentally ill residents, particularly those who have not been diagnosed, could face eviction for breaking rules or failing to show an effort to find permanent housing.

But the city insists that the mentally ill will be spared. "The standards don't apply to those individuals who have a mental impairment that prevents compliance," says Jim Anderson, spokesperson for the Department of Homeless Services. "We can't and we wouldn't hold someone to a standard that they can't understand or aren't physically able to comply with. That certainly isn't the point. We're looking at individuals who are able but unwilling to comply. The standard is: Does the mental impairment in and of itself prevent compliance?"

Still, there are other ramifications, such as for those outside the shelter system, predicts Laurel Tumarkin, a policy analyst at HELP USA, a shelter operator. "The public does not want to have people sleeping on the streets or park benches or in the subways," she says.

In the two months since Client Responsibility took effect, there has not been a single eviction. "It's business as usual for us," said Verona Middleton-Jeter, executive director of Henry Street Settlement, a provider.

ENCOURAGING RESPONSIBILITY

The Catholic Home Bureau, another shelter operator, is pleased with the policy so far. "It has supported us in terms of getting the clients to do something for themselves," said Dolores Ortiz, assistant executive director, who believes it has made them more accountable.

Many residents seem to agree. "If people don't comply with rules, places like this aren't going to be able to function at all," says Andre Smith, a 29-year-old resident of HELPUSA S.E.C., a substance-abuse shelter on Wards Island. "It creates structure for a person, giving him a basic idea of what's required in the real world. We shouldn't be around people that are constantly violent or using."

The policy "helps us," says shelter director Edwin Cruz. "It's a little negative incentive, negative reinforcement."

Some shelter operators hope the policy will help adults who have used the shelter system at least 24 months over the past four years to move on. "I think it's going to motivate people to utilize the services available to get out of the system," says Jerry Heaney, social services director at the HELP USA shelter.

Some employees of shelters that offer therapeutic services have complained that, with homelessness at such a high level, the city has sometimes forced them to house adult residents who do not follow treatment regimens and are a bad influence on others who are trying to comply. Some shelter residents "just want a hot and a cot," says Cynthia Stuart, a spokesperson for Project Renewal,, where a "sizable number" of people got beds in the last year and a half but, she says, showed no interest in the program.

"I don't want this to sound cold, but every person that I'm continuing to allow to stay in for non-compliance is either going to end up dead, in jail, or severely damaged from their drug abuse," explains Anthony Benedetto, vice president of programs and services, at Samaritan Village, which operates shelters that offer substance abuse programs. "I don't want to see anyone die. But I know that when people are spinning out of control, somebody has to stop them from spinning."

Melvin Alvarez remembers the day he lost control. "I was in the Bronx, on a street curb, my jacket was up the block, my Walkman was over there," he points, "and the cops were asking me who the president was. I answered everything to the fullest, but I must've had a deranged look on my face." It was January 7, 1999, the day Alvarez overdosed on heroin after 18 years of using drugs, and many years on the street. When he was placed in a shelter a couple of months later, he says, he was ready to demonstrate responsibility, follow rules, work with a street-cleaning detail and save money.

Alvarez, now 36, is earning an accounting degree at Hostos Community College. He has a studio on 142nd Street, a Honda Prelude, a 401(k) pension plan, bonds and a savings account. He has just been promoted to social services director at Ready, Willing & Able, a shelter run by The Doe Fund.

Others at Ready, Willing & Able say they too are en route to finding apartments and holding steady jobs because they know they would be transferred otherwise. One, Robert Kennedy, 50, kicked a 20-year crack habit, and moved into Ready, Willing & Able seven months ago. He hopes to be hired by the shelter, after another round of training, as a dispatcher for the street maintenance crews.

"If you're not going to follow rules, I think you ought to be out on the street," says Kennedy. "Because they can't help you if you don't follow the rules."


Related Articles:

• The Permanent Emergency For Homeless Families by Stephanie Carberry
• In NYC Books: Grand Central Winter: Stories From The Street

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

New Rules for the Homeless


Families sleeping on the floor of the Emergency Assistance Unit in the Bronx. Although people no longer stay overnight at the facility, it remains crowded, with parents and children going through long waits to get housing. The people's faces are covered to protect their identities.
(Courtesy, Coalition for the Homeless)
Like most people, Evelyn Hennings likes to sleep lying down. But she doesn't have this luxury every night. For four months last year, Hennings, 49, slept upright in a white plastic chair at Grand Central Neighborhood, a midtown drop-in center where some 200 homeless adults, schlepping tattered bags of belongings, stop in daily for hot food and a place to sit.

In late September Grand Central found Hennings a rotating spot in a church bed, one of many that are swapped among the homeless individuals who use the city's drop-in centers. Hennings gets the bed four nights a week. The other three evenings, she's back in her chair. And yet, Hennings says, "being here is much better than being in a shelter."

Hennings, whom a Grand Central employee says has an undiagnosed mental illness, is among the many homeless adults who avoid the city's temporary residences while they search for permanent housing and jobs. She abandoned her bed in a Brooklyn shelter last May when a caseworker wanted to transfer her to a site offering specialized care for the mentally impaired. She can't remember how long she lived at the Brooklyn shelter but knows she was tired of moving. "I'm not interested in bouncing from shelter to shelter," she says.

Long-term shelter residents like Hennings make up roughly 17 percent of single adults in shelters and use about half of the resources. They are one of the targets of a new city policy called Client Responsibility Standards that aims to curb dependence on the shelter system and spark a sea change in the culture of the homeless. (For an article on programs for homeless families in New York see Stephanie Carberry's story on the Emergency Assistance Unit in the Bronx.)

So far, the program, which was officially launched in November, has had little effect. The city says it could eventually spur single adults to take more control over their lives and, simultaneously, alleviate crowding in the 49 adult residences. But the policy has evoked outrage from advocates, who worry it will force thousands of people, particularly the mentally disabled, into the streets.

THE NEW RULES

The standards allow shelter operators to evict residents for a minimum of 30 days if they break general rules, like those requiring sobriety, or do not follow their personalized set of guidelines requiring them to search for employment and housing. Until now, unruly adults who start fights, for example, or refuse to stay clean in a drug-free program, have merely been transferred to another shelter.

Client Responsibility, long sought by the city, comes as the number of homeless in New York continues to rise. On January 20, the city counted 38,583 homeless individuals, including 8,896 single adults. (On February 23, the city will conduct a survey to determine the number of homeless people on the streets.)

As a result of a 1981 court ruling, New York is the only city in the nation where homeless people have enjoyed the "right to shelter" - and so could not be evicted from the shelters. The Guiliani administration tried unsuccessfully to reverse the ruling. But last June an appellate court ruled that the city Department of Homeless Services could set rules and requirements for shelter residents to follow.

For a resident to be evicted, a caseworker must suggest it. Then, a social services director reviews the request and sends it on for endorsement by the department. There the assistant commissioner, the commissioner and a suspension committee examine the case. In the meantime, the resident can request a fair hearing and vow to change.

But despite these safeguards, some homeless advocates fear that Client Responsibility will discourage many who need shelter from seeking help.

The mere prospect of eviction after 30 days "will result in many individuals just saying, 'you know what, I'm just going to go to the streets,'" says Patrick Markee, a senior policy analyst at the Coalition for the Homeless, which brought the 1981 case.

FEARS FOR THE MENTALLY ILL

"We're very concerned about the safety of people, particularly people with disabilities," says Lauren Bhola-Pareti, executive director of the Council for Homeless Policies and Services, a coalition of shelter providers.

She and other advocates are particularly concerned about the mentally ill. Homeless services has about a thousand beds for mentally ill homeless, according to its own reports, perhaps fewer than is needed. Many shelters do not employ staff psychiatrists, and most caseworkers have little training in mental-health issues, says Susan Neibacher, executive director of Care for the Homeless, which provides mental health service in homeless facilities. She worries that many mentally ill residents, particularly those who have not been diagnosed, could face eviction for breaking rules or failing to show an effort to find permanent housing.

But the city insists that the mentally ill will be spared. "The standards don't apply to those individuals who have a mental impairment that prevents compliance," says Jim Anderson, spokesperson for the Department of Homeless Services. "We can't and we wouldn't hold someone to a standard that they can't understand or aren't physically able to comply with. That certainly isn't the point. We're looking at individuals who are able but unwilling to comply. The standard is: Does the mental impairment in and of itself prevent compliance?"

Still, there are other ramifications, such as for those outside the shelter system, predicts Laurel Tumarkin, a policy analyst at HELP USA, a shelter operator. "The public does not want to have people sleeping on the streets or park benches or in the subways," she says.

In the two months since Client Responsibility took effect, there has not been a single eviction. "It's business as usual for us," said Verona Middleton-Jeter, executive director of Henry Street Settlement, a provider.

ENCOURAGING RESPONSIBILITY

The Catholic Home Bureau, another shelter operator, is pleased with the policy so far. "It has supported us in terms of getting the clients to do something for themselves," said Dolores Ortiz, assistant executive director, who believes it has made them more accountable.

Many residents seem to agree. "If people don't comply with rules, places like this aren't going to be able to function at all," says Andre Smith, a 29-year-old resident of HELPUSA S.E.C., a substance-abuse shelter on Wards Island. "It creates structure for a person, giving him a basic idea of what's required in the real world. We shouldn't be around people that are constantly violent or using."

The policy "helps us," says shelter director Edwin Cruz. "It's a little negative incentive, negative reinforcement."

Some shelter operators hope the policy will help adults who have used the shelter system at least 24 months over the past four years to move on. "I think it's going to motivate people to utilize the services available to get out of the system," says Jerry Heaney, social services director at the HELP USA shelter.

Some employees of shelters that offer therapeutic services have complained that, with homelessness at such a high level, the city has sometimes forced them to house adult residents who do not follow treatment regimens and are a bad influence on others who are trying to comply. Some shelter residents "just want a hot and a cot," says Cynthia Stuart, a spokesperson for Project Renewal,, where a "sizable number" of people got beds in the last year and a half but, she says, showed no interest in the program.

"I don't want this to sound cold, but every person that I'm continuing to allow to stay in for non-compliance is either going to end up dead, in jail, or severely damaged from their drug abuse," explains Anthony Benedetto, vice president of programs and services, at Samaritan Village, which operates shelters that offer substance abuse programs. "I don't want to see anyone die. But I know that when people are spinning out of control, somebody has to stop them from spinning."

Melvin Alvarez remembers the day he lost control. "I was in the Bronx, on a street curb, my jacket was up the block, my Walkman was over there," he points, "and the cops were asking me who the president was. I answered everything to the fullest, but I must've had a deranged look on my face." It was January 7, 1999, the day Alvarez overdosed on heroin after 18 years of using drugs, and many years on the street. When he was placed in a shelter a couple of months later, he says, he was ready to demonstrate responsibility, follow rules, work with a street-cleaning detail and save money.

Alvarez, now 36, is earning an accounting degree at Hostos Community College. He has a studio on 142nd Street, a Honda Prelude, a 401(k) pension plan, bonds and a savings account. He has just been promoted to social services director at Ready, Willing & Able, a shelter run by The Doe Fund.

Others at Ready, Willing & Able say they too are en route to finding apartments and holding steady jobs because they know they would be transferred otherwise. One, Robert Kennedy, 50, kicked a 20-year crack habit, and moved into Ready, Willing & Able seven months ago. He hopes to be hired by the shelter, after another round of training, as a dispatcher for the street maintenance crews.

"If you're not going to follow rules, I think you ought to be out on the street," says Kennedy. "Because they can't help you if you don't follow the rules."


Related Articles:

• The Permanent Emergency For Homeless Families by Stephanie Carberry
• In NYC Books: Grand Central Winter: Stories From The Street

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



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