STATEMENT OF THE CASE

A. Historical Overview

In the 1970's, advocates and activists began to raise awareness about the insidiousness of domestic violence. By the 1980's, domestic violence shelters and hotlines materialized in cities and towns across the United States. See, e.g., Spears, "Building Bridges Between Domestic Violence Organizations and Child Protective Services" (February, 2000) (Exhibit 240). Police who failed to treat domestic violence as the crime that it is -- a failure that resulted in batterers remaining free to continue, and even to escalate, their behavior B were held liable. Thurman v. City of Torrington, 595 F.Supp. 1521 (D. Conn. 1984) By the 1990's, the federal government had begun allocating funds to community-based domestic violence service providers. See, e.g., Schechter & Edelson, "Domestic Violence and Children, Creating a Public Response" (2000) at 6 (Exhibit 156).

In 1994, the New York State Legislature enacted a law which prohibited police officers from merely telling a batterer to "take a walk around the block," but rather mandated arrest in cases of domestic violence in which there was probable cause to believe a crime had been committed. N.Y. Crim. Proc. L. Sec.140.10(4). The law also required police to determine who was the primary aggressor in domestic violence cases, when faced with cross-complaints. Id.

As domestic violence advocates continued to educate policy-makers and the public about the dangers of domestic violence, awareness increased as to the effects of domestic violence on children. In 1996, the New York State Legislature amended the Domestic Relations Law to provide that, where domestic violence is proven, it must be considered by courts in making custody and visitation orders. N.Y. Dom. Rel. L. Sec.240(1)(a).

Shortly thereafter, as described in more detail below, the backlash began. New York City s child protective agency had shown promising initiative in the field in the early 1990's in addressing domestic violence issues, nut its successor, the Administration for Children s Services ("ACS"), joined the backlash. ACS began citing the potential harmful effects on children of witnessing domestic violence as a justification for removing them -- not from their abusive fathers, but from their battered mothers. (See Point C, infra)

Plaintiffs expert, Evan Stark, Ph.D., who has worked in the fields of domestic violence and child protection for more than 25 years, and who founded one of the nation s first shelters for battered mothers and their children, concludes:

I think my frustration personally, and I think the frustration of many of us in the field, has been that in providing what we believed to be helpful information about possible links between domestic violence and risks to children, that much of what we have provided by way of education and training has come back to haunt us in the form of a set of interventions that have gone much further that we believe they should have, and hurt the people we set out to help. (T. 1650)

The instant lawsuit challenges those interventions as violating the United States Constitution.

B. The Current Institutional Framework

The New York State Central Register of Child Abuse and Maltreatment ("SCR") serves as the conduit through which all investigations of child abuse and neglect are initiated. (T. 1130) SCR maintains a telephone hotline with a toll-free number, staffed 24 hours a day, seven days a week, in order to receive complaints of child abuse, child neglect, or child maltreatment. N.Y. Soc. Serv. L. Sec.422(2)(a). State law requires certain individuals to report to the Central Register whenever "they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child." N.Y. Soc. Serv. L. Sec.413. The system encourages over-reporting of parents by penalizing the failure to report and protecting false reporting. A person who is required to report suspected child abuse, neglect, or maltreatment may be subject to criminal prosecution under N.Y. Soc. Serv. L. Sec.420(1) or civil liability under N.Y. Soc. Serv. L. Sec.420(2) for erroneously failing to do so. Anyone who makes a report is entitled to immunity from all liability if the report turns out to be false, unless the wrongfully-reported parent proves that the reporter acted in bad faith. N.Y. Soc. Serv. L. Sec.419.

In addition to persons required by law to do so, anyone who wants to report that a parent has abused or neglected a child has the right to call the hotline. N.Y. Soc. Serv. L. Sec.414. The report may even be made anonymously, and many reports are.

SCR staff conduct the initial screening of each complaint (T. 1130), weeding out those which do not constitute abuse or neglect, and those which lack sufficient identifying information. (T. 673, 684-85); N.Y. Soc. Serv. L. Sec.422(2)(b). SCR transmits the remaining reports, plus background information, to the field offices in the counties where the children are located. (T. 673) SCR does not consider an allegation of domestic violence to constitute child abuse or neglect per se, and therefore has no allegation code pertaining to domestic violence on its database. (Ex. I at 1) However, the SCR may mention domestic violence in the transfer of information from its hotline in Albany to the field offices in New York City. (T. 278, 1130)

Because there is no "code" for an allegation of domestic violence in the SCR system, there is no way to count the number of cases in which domestic violence is mentioned. (T. 278, 1131) Information about domestic violence cases is not available from the State s automated system, nor does the State collect that data. (T. 241, 1471)

When a report reaches one of the five New York City field offices of ACS (one in each borough), an applications worker forwards it to a team headed by a Supervisor II, and the Supervisor II assigns a caseworker to investigate. The applications worker may code the case as involving domestic violence, but doing so is almost a matter of happenstance. (T. 1131-32)

ACS is responsible for investigating all complaints of suspected child abuse, neglect, and maltreatment which it receives from the Central Register. N.Y. Soc. Serv. L. Sec.424(6). ACS make a preliminary judgment within seven days of receiving each report and transmit a report, containing that judgment along with information as to the progress of the investigation, to the Central Register. Soc. Serv. L. Sec.424(3).

ACS must complete each investigation within 60 days of receiving the report of suspected child abuse, neglect, or maltreatment. N.Y. Soc. Serv. L. Sec.424(7). The outcome of the investigation must include a conclusion as to whether there is "some credible evidence" of the allegations. N.Y. Soc. Serv. L. Sec.412(6). If so, ACS determines that the report is "indicated." If not, it is "unfounded." Soc. Serv. L. ''424(7); 412(5). ACS must transmit its conclusion, as well as the reasons for the conclusion, to the Central Register. N.Y. Soc. Serv. L. Sec.424(3). Neither the Central Register nor the state department make independent assessments as to whether a complaint is "indicated" or "unfounded."

If ACS determines that a complaint is unfounded, the Central Register seals all information in its files regarding the report. If ACS determines that there is some credible evidence to support the charges in the complaint, the Central Register retains all information in its data base and in its library until the family's youngest child reaches the age of 28. N.Y. Soc. Serv. L. Sec.422(6).

At any time during the 60 day investigation, ACS has discretion to commence child protective proceedings against the parents in the Family Court. N.Y. Fam. Ct. Act Sec.1032(a); N.Y. Soc. Serv. L. Sec.397(2)(b). If ACS determines that a complaint is "indicated," ACS may commence child protective proceedings against the parents after the 60 day period has elapsed. N.Y. Soc. Serv. L. Sec.424(11). ACS acts as the petitioner (prosecutor) in the Family Court. N.Y. Fam. Ct. Act Sec.1032(a). ACS also has discretion to refer the case to the District Attorney for investigation and possible criminal prosecution. N.Y. Soc. Serv. L. Sec.424(11).

The information contained in the Central Register is nominally confidential, but so many individuals and organizations are entitled to that information, or at least portions of the information, that confidentiality exists in name only. N.Y. Soc. Serv. L. Sec.422(4)(A).

When a person seeks a job that involves working with children, the employer must inquire of the Central Register whether the parent is "the subject of an indicated report." N.Y. Soc. Serv. L. Sec.424-a(1)(b). If so, the employer cannot hire the applicant unless the employer submits a written statement, explaining why the employer has decided to allow someone who neglected her own children to work with other people s children. N.Y. Soc. Serv. L. Sec.424-a(2)(a). Few employers' insurance companies allow them to take such a risk.

ACS has limited authority to remove a child from a parent without court order: the agency may do so only if the child s life or health is in imminent danger of severe impairment. N.Y. Fam. Ct. Act Sec.1024; N.Y. Soc. Serv. L. Sec.417. As a matter of due process of law, ACS is required to seek court orders prior to removing children, unless the situation is such an emergency that there is insufficient time to do so. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. den. 529 U.S. 1098, 120 S.Ct. 1832 (2000). In practice, ACS rarely follows that constitutional mandate.

When ACS has removed a child prior to court application, and requests a remand order ex parte, the general practice is that the ACS attorney says: "Your Honor, we removed the children and we want a remand order," and the judge says "all right, granted." The judge then sets a date for ACS to serve the parents with process and adjourns the case. (T. 354-55) Even defendants expert Richard Gelles, Ph.D., noted that a typical hearing deciding removal "lasts no more than ten minutes." (T. 2409) Philip Segal, a former Family Court judge who appeared as plaintiffs' expert, testified that during his tenure as a Family Court judge ACS rarely notified parents of initial applications for remand orders. (T. 233)

If ACS requests removal of a child and the parent is present, the application will be considered immediately. N.Y. Fam. Ct. Act Sec.1027 (T. 124-25, 331) At the hearing, hearsay is admissible, and the only inquiry is whether the child would be at imminent risk if returned home and, if so, whether there are services which could alleviate the risk. N.Y. Fam. Ct. Act. Sec.1027. (T. 359, 952)

When a child has already been removed, the parent is entitled to a hearing within three days. N.Y. Fam. Ct. Act Sec.1028. The Sec.1028 hearing is an opportunity for a parent to secure the return of her child immediately, prior to the commencement of the fact-finding phase of the proceeding, which may continue for some six months. (T. 930) However, in practice the hearing is not immediate. Although it may commence immediately, the hearing may not conclude in one day, due to the court s heavy calendar. (T. 358)

Whenever ACS removes a child or seeks to remove a child, ACS must commence a proceeding alleging abuse or neglect. N.Y. Fam. Ct. Act Art. 10. The matter is then scheduled for a "fact-finding" trial. Often, several months will pass before the fact-finding trial is commenced (T. 334), and the fact-finding hearing may take months complete, due to lengthy adjournments. (T. 366) If the judge makes a finding of neglect, a "dispositional" hearing follows to determine whether the child will return home, remain in foster care for up to 12 months, or whether the parent will be required to complete certain requirements such as parenting skills classes and counseling (T. 336) That hearing is likely to be delayed further. (T. 930) ACS Commissioner Nicholas Scoppetta confirmed that "[o]nce you are in the Family Court, you are in it very often for many months before you can get to the substance of the case... ." (T. 2505)

Paul Savarese, ACS Supervising Attorney in Kings County Family Court, testified that settlement discussions may occur immediately, in which the parent consents to making an admission to the allegations in the petition. (T. 332) ACS may also offer what is called an "ACD," or adjournment in contemplation of dismissal, by which the parent simply agrees to ongoing ACS supervision for up to a year. (T. 333, 370) According to Mr. Savarese, ACS rarely withdraws cases. (T. 371)

While the Family Court case is pending, ACS supervises the family. (T. 351) ACS employees may enter the home, make unannounced visits, and require the family to attend designated services. (T. 351) Although Mr. Savarese testified that ACS may supervise in most, but not all, of the cases while they are pending before the Family Court (T. 351), every domestic violence case presented to this Court involved ACS supervision during the lengthy pendency of the Family Court case.

    3. Assignment of Counsel

Pursuant to N.Y. County Law Article 18-B, indigent parents are entitled to the assignment of counsel in child protective proceedings. Mr. Savarese acknowledged that most parents cannot afford attorneys (T. 354, 927) and generally appear in court without counsel. (T. 354) While indigent parents are entitled to assigned counsel at arraignment (the initial appearance) (T. 330, 331), there have been difficulties in finding attorneys for indigent parents. (T. 355) There are simply not enough attorneys who are available for assignment. (T. 122, 123)

According to Deirdre O Sullivan, C.S.W., J.D., who is employed by C-PLAN in the Public Advocate s Office, the system is in crisis: parents are not getting the representation they need in these complex child welfare cases. (T. 916, 933, Ex. 123) The number of attorneys available for assignment is grossly insufficient; the fees paid to assigned counsel are grossly inadequate; institutionalized resources are non-existent; and assigned counsel are prohibited from specializing in any particular type of case. (Ex. 123) The Public Advocate s findings apply with great force to neglect proceedings in which ACS prosecutes battered mothers based upon allegations of domestic violence. (T. 925) The crisis in representation of parents in domestic violence cases affects children as well: they are placed in foster care unnecessarily or remain in foster care longer than necessary. (T. 955) Mr. Segal echoed those concerns and conclusions, based on his experience as a Family Court judge. (T. 162-64)

Most 18-B attorneys spend their entire day in the courthouse. (T. 929) They meet with their clients at the courthouse. (T. 929) They have heavy case loads, and no staff or resources to assist them in preparing for hearings seeking immediate return of children. (T. 932) They do not have social workers who can assist them in helping battered mothers with complex social service issues or in preparing for trial. (T. 173, 936) Because of the shortage of attorneys, occasionally no attorneys are available to be assigned. (T. 933, Ex. 208)

The 18-B attorneys have little financial incentive for assisting clients outside of court, since payment for out-of-court services is only $25 per hour, compared to $40 per hour for in-court services. (T. 918, Ex. 123, p. 12) Once a case has reached disposition, the assignment of counsel for the indigent parent concludes, even though the children may remain in care and the parent may remain subject to ongoing court orders and ACS supervision. (T. 917) The attorney is not required to handle the parent s appeal, or to defend against an ACS appeal. (T. 155-56) 18-B attorneys are not required to have malpractice insurance. (T. 929)

C-PLAN recommends that attorneys on the 18-B panel be permitted to specialize in representing battered mothers in domestic violence cases. (T. 937) The system currently does not permit attorneys to specialize in any area, with the exception of one program operated by Sanctuary for Families (co-counsel for plaintiffs in the instant action), which authorizes a few attorneys to handle only domestic violence matters. (Ex. 123 at 42) Even ACS recognizes the appalling situation of 18-B counsel, and has recommended changes in the system. (Ex. R, p. 79)

C. ACS Historical Response to Domestic Violence

In 1993, the Child Welfare Administration ("CWA"), predecessor agency to ACS, began a pilot project, funded by the Urban Justice Center, a not-for-profit organization, to develop best practices and interventions to protect domestic violence victims and children, while holding the perpetrators accountable for the violence. (T. 1122-25) During the project, called the "Zone C Pilot Project," a special protocol was used on every case within Zone C of Manhattan to assess families for the presence of domestic violence, regardless of whether it was mentioned in the initial report from the State Central Register. (T. 1124-25) The project goal was to increase the identification of families in which domestic violence was a problem (T. 1125), while avoiding the negative consequence of child removal as the only safety intervention. (T. 1126)

Defendants witness Kathryn Conroy, D.S.W., said that there was great concern in that project that if CWA looked for domestic violence during child abuse and neglect investigations, CWA would remove more children from battered mothers. (T. 1917) In order to decrease the likelihood that removal would be CWA s intervention of choice in cases in which domestic violence was uncovered, CWA collaborated with Susan Urban, an acting Deputy Commissioner at New York City s Human Resources Administration ("HRA"), to develop the pilot and providing training. (T. 1490) Whenever a caseworker in the Zone C Pilot Project determined that a battered mother and her children needed shelter, Ms. Urban personally insured that shelter was provided to them. (T. 1124, 1169-70, 1490)

When the Zone C Pilot Project was launched, some people within CWA were "very, very excited and interested in seeing domestic violence interventions and services grow, grow in awareness, grow in support and grow in options within the agency." (T. 1173) The Zone C Pilot Project was a success, with a 100 percent increase in the identification of domestic violence in the child protective caseload, and without an attendant increase in child removals. (T. 1125-26, 1171, Ex. EEE, p. 592)

Shortly after the conclusion of the Zone C Pilot Project, CWA became involved in the Family Violence Prevention Project, through which preventive service agencies were specially trained to screen for and address domestic violence issues. (T. 1176-78, 1920-21) Dr. Conroy and her colleague, Dr. Randy Magen, also piloted and began a study of a new domestic violence training module for child protective workers. (T. 1919)

As the agency launched those new initiatives, Dr. Conroy warned, "If child protective workers do not have the knowledge and skill to assess women abuse safely, there is the potential that asking the questions [about the existence of domestic violence] could cause greater harm to women and children." (Ex. EEE at 587) With regard to increased assessment efforts for domestic violence, Dr. Conroy cautioned that "intensive training and constant oversight of this work were essential for good intentions not to turn to bad programming[,] which further endangered those we sought to help." (Ex. LL at 255) At trial, Dr. Conroy testified (as City defendants witness) that she still believes that intensive training and constant oversight are essential to avoid bad programming. (T. 1931)

By 1996, CWA had been dismantled B the result of the highly publicized death of young Eliza Izquierdo. (Ex. 35, T. 2232, 2233) Nicholas Scoppetta was tapped to head New York City s "new" child welfare agency, the Administration for Children s Services. In a flurry of planning and reform, ACS all but abandoned the issue of domestic violence. (T. 1127, 1912-13, Ex. 35) The Zone C Pilot Project, although widely viewed as successful (T. 1126-27, Ex. EEE), was not replicated. (T. 1127-28, 1506-07)

From the moment that Commissioner Scoppetta took office, various advocates attempted to meet with him about domestic violence issues (T. 1410-11, 1128) and the dangers of poor training and supervision of caseworkers about those issues. (E.g., Ex. 233) Their efforts to obtain a meeting were unsuccessful.

In December 1996, Commissioner Scoppetta unveiled his new Reform Plan, including a Mission Statement and Operating Principles. ACS instructed workers, unequivocally, to "resolve all ambiguities in favor of removing children from harm s way" and to refuse to reunite them with their parents until "the parents demonstrate that they can keep the children safe." (Ex. 35, Ex. 37) For the first time since 1966, the word "family" did not appear in ACS s mission statement B a statement which forms the basis for accountability throughout the entire agency. (T. 1498, l604)

Susan Urban raised the concern that such a focus was not appropriate in domestic violence cases, where consideration of the safety and well-being of the battered mother best served the safety and well-being of the children. (T. 1498) Her concerns, and the concerns of the advocates who tried to meet with Commissioner Scoppetta were ignored: the Reform Plan did not contain a single mention of domestic violence. (T. 1411, T. 1496, Ex. 35)

Dr. Conroy, who participated in drafting the Reform Plan (T. 1909), testified that ACS was in such a state of shambles "that to pick out a specific issue in isolation would have been in my opinion as a social work practitioner foolish." (T. 1915) Yet, ACS did pick out several issues "in isolation," regarding its declared commitment to child removal as the protective intervention of choice: the issues of improving foster care and shifting to neighborhood-based services (T. 2150, 2499, 2277) To this day, the internal Advisory Committee which was established as a result of the Reform Plan, and on which Dr. Conroy serves, has never considered the issue of domestic violence. (T. 1936)

William Bell, the ACS Deputy Commissioner of the Child Protection Division, testified that the "overwhelming" focus of the new agency was to strengthening the child protective functioning and to "understand how and where practice needed to be improved." (T. 2234) However, it was nearly five years before ACS turned even a modicum of attention back to the issue of domestic violence, leaving workers with little or no guidance as they followed the agency s mandate to resolve any ambiguity in favor of removal of children B a mandate which had a devastating impact on non-offending battered mothers and their children.

D. Increasing Alarm Over ACS Domestic Violence Policy and Practices

In January, 1997, Susan Urban left her position at HRA and joined ACS as Deputy Director in the Office of Interagency Affairs. Along with her other duties, she was given the informal sub-title of domestic violence coordinator. (T. 1494) The latter position was created in response to reviewers and evaluators who had recommended that ACS needed to pay attention to the issue of domestic violence. (T. 2123) Ms. Urban did not have any staff. (T. 1495)

At Ms. Urban s behest, Commissioner Scoppetta finally agreed to meet with advocates from the Inter-agency Task Force Against Domestic Violence Child Welfare Subcommittee, a coalition of advocates, service providers and city officials, all concerned with issues of domestic violence. (T. 1409, 1440) At the January 1997 meeting with the Commissioner, the Subcommittee made recommendations regarding ACS policy. (T. 1411-12, 1496-97, 2523, Ex. 233) The group followed up its meeting with the Commissioner with a letter, re-emphasizing their concerns and interest in changes in policy and practices related to domestic violence, making recommendations, and offering their assistance. (T. 1413-14; Ex. 233) ACS disregarded the recommendations. (T. 1134, 1497, 1505) Ms. Urban also made recommendations related to domestic violence policy and practice, most of which were not adopted. (T. 1499-1505, 2168)

In April, 1997, ACS convened working groups of ACS personnel and advocates on various important child welfare issues. (T. 1414) The working group on domestic violence, which considered issues of concern and made recommendations on those issues, was not re-convened after April 1997. ACS did not turn to its domestic violence coordinator or the Interagency Task Force for further input or assistance. (T. 1414, 1497)

Throughout 1997, Ms. Urban was repeatedly asked by advocates to intervene in domestic violence cases in which ACS removed children from non-offending mothers (T. 1501, Ex. 236), but there was little she could do, as she had no authority over the ACS supervisory personnel who made the removal decisions. (T. 1502) Ms. Urban raised her concerns with Charles Hollander, Associate General Counsel of ACS, advising him that advocates believed that children were being inappropriately removed from non-offending battered mothers. (T. 1502) She requested that ACS collect data on the prevalence of domestic violence and ACS s response to it. (T. 1502-03, Ex. 236) No data was collected. (T. 1504)

In early 1999, ACS finally began planning the Zone A Pilot Project, the putative successor to the Zone C Pilot Project which had ended in 1994. The Zone A Pilot Project, which covered Zone A of the Manhattan Field Office only, was scaled back from the predecessor project in one critical aspect: ACS decided not to screen all cases for domestic violence, as they had during the Zone C Pilot Project. (T. 1129, Ex. 13) While the Zone C Pilot Project included every case that came into the office, cases were included in the Zone A Pilot Project only if they were identified as domestic violence cases by the ACS employees in the Applications department, those who initially receive cases from the State Central Register. (T. 1132)

By October 1999, the Child Welfare Subcommittee of the Interagency Task Force Against Domestic Violence had formed a working group to address its concerns about ACS practice in cases involving domestic violence. (Ex. 106, p. 4) Their report, which was based upon the firsthand experiences of Task Force members (T. 1415, Ex. 106), stated as follows:

Unfortunately the heightened awareness of the harm domestic violence causes children has also resulted in a punitive policy toward battered women in the child welfare system. Increasingly in New York City, abuse and neglect proceedings are brought against battered mothers whose children are removed from them where the only allegation is their children's "exposure" to domestic violence. This approach has the unfortunate result of discouraging battered mothers from seeking the services they need to escape domestic violence and often causes further harm to children and families.

-- Child Abuse and Domestic Violence: Still Blaming the Victim," 27 Fordham Urb. L.J. 849 (February 2000) (Ex. 106, p. 4)

ACS Associate Commissioner Zeinab Chahine, who oversees the Division of Child Protection, knew of the report, but did not investigate the misdeeds described in the report. She was not aware that anyone else in ACS investigated them either. (T. 1748-49) Deputy Commissioner Linda Gibbs likewise recalls the report and the claim that children were being unnecessarily removed from battered mothers, but she does not recall conducting any investigation. (T. 2170)

On October 13, 1999, the United States Court of Appeals for the Second Circuit ruled that the City s practice of removing children without a court order was unconstitutional. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. den. 529 U.S. 1098 (2000).

On October 22, 1999, the New York City Council held a full-day hearing on how ACS policies affect domestic violence victims and their children, noting that, where domestic violence is involved, "it appears to be the case that very often... children are removed by ACS." (Ex. 128 at 5; see also Ex. 105) Representatives from C-PLAN, the Bronx Borough President s office, the Coalition of Battered Women s Advocates, the Interagency Task Force Against Domestic Violence, the National Coalition for Child Protection Reform, Brooklyn Legal Services, Park Slope Safe Homes, Queens Legal Services and Barrier Free Living again complained that ACS was unnecessarily removing children from battered mothers and charging the mothers with child neglect. (Ex. 128 at 11, 20, 29, 35, 37, 65, 98, 109-10, 116)

By March, 2000, the Special Child Welfare Advisory Panel had issued a report in Marisol v. Giuliani, 185 F.R.D. 152, 157 (S.D.N.Y. 1999) aff d 218 F.3d 132 (2d Cir. 2000), which concluded that ACS s "understanding of domestic violence and how to work with its victims is quite limited" and that "adequate knowledge of domestic violence does not yet inform most of the practice we observe." (Ex. 124 at 12; see also T. 2557-58)

In June, 2000, plaintiffs filed the instant action, challenging ACS s handling of domestic violence cases. In August, 2000, and November, 2000, respectively, plaintiffs filed the companion cases of Udoh v. Scoppetta and Tillett v. Scoppetta.

On July 8, 2000, the New York Times published an article, "Tough Justice: Taking a Child When One Parent is Battered." (Ex. 109) The article stated that ACS had removed children unnecessarily from domestic violence victims. Commissioner Scoppetta was aware of the article, although he claimed that it was inaccurate. (T. 2577)

On January 19, 2001, plaintiffs moved for class certification on behalf of the battered mothers and children affected by ACS policy and practice. The testimony and evidence at trial established that ACS training, oversight, supervision and resources in the area of domestic violence are sorely lacking: ACS policy and practice in cases involving domestic violence is to remove children from battered mothers unlawfully and unnecessarily.

E. ACS Policy and Practice Regarding Removal of Children

Dr. Evan Stark, plaintiffs' expert witness and a practitioner and researcher of substantial credentials, identified ACS as a mission-driven agency. Its mission to resolve ambiguity in favor of removing children from their mothers was developed through the prism of the deaths of children under ACS s supervision, particularly that of young Eliza Izquierdo. (T. 1606, Ex. 35) The effect of the1 new ACS mission to resolve ambiguity in favor of removing children is borne out by the statistics. In both 1998 and 1999, the rate of child removal in New York City was approximately twice the removal rate for the balance of the state. (T. 943, 1462, Ex. 235) When asked directly about the discrepancy, City defendants' expert Richard Gelles, Ph.D., glossed over that point, by referring only to the data for New York State in opining that the removal rate was not extraordinary. (T. 2407, Ex. Z at 7)

ACS cited the Record Review of the New York State Office of Children and Family Services ("OCFS") (Ex. X) to support its claim that it is not removing too many children. (T. 2546-49) In 1999-2000, the Record Review concluded that 93 percent of the removals by ACS were necessary. (T. 2547, Ex. X at 71) Therefore, even ACS s supervising agency conceded that at least seven percent of the children may have been removed unnecessarily.

The Record Review suffered an inherent weakness: OCFS reviewed only ACS records in making its determination. OCFS did not review Family Court records, to determine whether the court had agreed with the removal decision, nor did OCFS interview parents, social workers, doctors, or teachers to consider the other side of the story.

Even with its bias towards ACS, the Record Review is hardly a vindication of ACS removal practices. The Record Review found that two percent of the removals were unnecessary, and that a determination of the validity of the removals could not be made in five percent of the cases. (Ex. X at 71) Since ACS removes approximately 10,000 children per year (Ex. 242), taking the one-sided Record Review at face value establishes that ACS removes 200 children per year unnecessarily and may be removing an additional 500 children per year unnecessarily.

Despite ACS s statutory mandate to provide services or alternatives to foster care before removing children, the Record Review shows that ACS often failed to comply with the mandate, resulting in even more unnecessary removals. The Record Review found that ACS failed to provide services or alternatives to foster care in 86 percent of the cases. (Ex. X at 70) Even accepting the Record Review s conclusion as accurate -- that services were not appropriate in 79 percent of the cases -- by their own analysis 700 children per year (7 percent of the cases) were placed in foster care unnecessarily.

The ACS claim that it has reduced the overall foster care population is also misleading. While the foster care population dropped from 42,000 in 1996, to 34,354 in 2000, the entire decline was due to a reduction in the kinship population only. The number of children in care with strangers actually increased from 25,004 to 25,129. (Ex. 243) Furthermore, the percentage of children who were placed in kinship foster care declined from 35.4 percent of the new placements in 1990 to 18.8 percent of the new placements in 1999. (Ex. 243) In addition, ACS took 10,746 children into foster care in 1999, while in 1995, the year before ACS was created, ACS s predecessor took only 9,230 children into foster care. (Ex. 243)

Plaintiffs' expert John Courtney, M.S.W., and C-PLAN counsel Deirdre O Sullivan also pointed out, using ACS statistics, that 25 percent of the children whom ACS removes are returned within 30 days. (T. 944, 1464, 1474, Ex. 235) Mr. Courtney concluded that when children are returned so quickly, some of the removals were inappropriate. (T. 1464)

ACS does not keep any statistics regarding the number of children it removes with and without court orders. (T. 1769-70, 2590) Not even ACS s Division of Legal Services keeps statistics on the number of cases in which ACS has removed children prior to court application, although the Supervising Attorney makes bi-monthly reports related to other aspects of the cases which ACS has filed. (T. 355, 360) Commissioner Scoppetta conceded that, at least prior to October, 1999, when the Second Circuit issued its decision in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. den. 529 U.S. 1098 (2000), it was "quite common to simply make the removal [of a child] without the Court order. That was the culture and the practice in New York City." (T. 2590)

That concession is consistent with the testimony of Philip Segal, a former Family Court judge whose ten-year term ended on March 31, 2001. Mr. Segal testified that he could recall less than a dozen occasions when ACS sought a court order prior to removing a child. (T. 124)

ACS apparently has not changed its practices since the decision in Tenenbaum. (T. 1772) As a result of Tenenbaum, ACS issued a memorandum to its staff which advised them to "go about their normal jobs as they always have." (Ex. FFF) Sharon McDougall, director of ACS s Manhattan field office, testified that seeking a court order prior to removing children is merely "an option that s available" to caseworkers, rather than a mandatory requirement of due process of law. (Ex. 256, p. 56) That testimony reflects the assessment of Deputy Commissioner Bell that "the Tenenbaum ruling affirmed an option that existed in the law.... " (T. 2334)

As plaintiffs expert Laura Fernandez, M.S.W., a former child protective worker, testified, in the culture of child protective agencies, caseworkers fear that if a child is harmed, the caseworker will bear responsibility. (T. 1419, Ex. 137) Mr. Segal testified that he had "absolutely no doubt" that that fear is a prime motivation of the agency in making removal decisions. (T. 180) The Second National Incidence Study confirmed that assessment of the child welfare culture, finding that child protective workers were at least twice, and perhaps as much as six times, more likely to label an innocent family guilty than they were to label a guilty family innocent. (T. 2411)

One of the best ways to guard against unnecessary removals is to require ACS to obtain court approval before removing children, and to give battered mothers adequate representation at removal hearings. Commissioner Scoppetta s excuse for his agency s flagrant constitutional violations is that the Family Court judges discourage ACS from complying with the Family Court Act and with the United States Constitution, telling workers who apply for court orders prior to removal, "if you have enough [evidence] to remove, remove." (T. 2591) Commissioner Scoppetta testified that the Family Court judges "will sometimes say, don t come to me to make that decision. You go ahead and make the removal." He claimed that his workers "persist" in trying to comply with Tenenbaum. (T. 2591)

Commissioner Scoppetta s attempt to place the blame on the Family Court is misplaced. His own evidence shows that he, not the Family Court judges, has discouraged his employees from complying with Tenenbaum: his agency s memorandum in response to the Tenenbaum decision advises its staff "go about their normal jobs as they always have." (Ex. FFF)

Zeinab Chahine, ACS Associate Commissioner for child protection, acknowledged that ACS removes children from their battered mothers when the children have been exposed to domestic violence. (T. 1741) Likewise, Commissioner Scoppetta testified that ACS sometimes removes children from battered mothers, solely or primarily because of exposure to domestic violence. Commissioner Scoppetta claims that the agency "would like to correct those just as aggressively and readily as [they] can" (T. 2607), but his inaction belies the lofty sentiments that he expressed at trial.

Advocates and others involved in child welfare issues saw a significant rise, over the past several years, in the removal of children from battered mothers and prosecution of those mothers on the grounds that their children witnessed domestic violence. (T. 1415) For example, the dominant problem brought to the attention of the New York State Coalition Against Domestic Violence has been the improper removal of children from battered mothers. (T. 1279-80) Based upon her regular contact with ACS caseworkers and battered mothers, Coalition Executive Director Sherry Frohman has concluded that ACS regularly and inappropriately removes children from non-offending battered mothers. (T. 1288, 1319, 1327) Reviewing individual ACS case files led Dr. Stark to conclude that "it appeared... both from ACS own documentation as well as from documentation that was included in these case files, that placement was, in fact, directly precipitated simply by evidence of domestic violence and no substantial other factors." (T. 1597)

Dr. Gelles, City defendants expert, conceded that it is "entirely possible" that front-line caseworkers in domestic violence cases might want to protect themselves against criticism in the eventuality of disaster, by acting too quickly to remove children. (T. 2407-08) Laura Fernandez found that issues of domestic violence exacerbate the caseworkers fear of leaving children in the home, and create an increased pressure to remove children from the home, rather than engage in safety planning. (Ex. 137, p. 1)

City defendants insist that there is no evidence that they remove children from battered women, since ACS workers do not keep statistics about the number of cases they handle involving domestic violence (T. 278, 787-88), or the outcomes of those cases. (T. 788) Even as ACS moves forward to implement its new domestic violence policies, ACS does not appear to intend to collect data: Linda Spears, City defendants expert, testified that, despite questioning ACS personnel, she did not "get a sense" of how the agency intends to collect data related to domestic violence in the future. (T. 2048) The lack of data collection calls to mind that observation of City defendants expert Richard Gelles that some institutions purposefully refrain from studying certain problems in order to deny their existence, (T. 2399)

Commissioner Scoppetta testified that he knew of only two occasions on which ACS has maintained or collected data specifically related to domestic violence -- the Zone C and Zone A Pilot Projects. (T. 2592) Scoppetta neglected to mention that, in 2000, Andrea Reid, who coordinates ACS policy in the Division of Child Protection related to domestic violence issues, conducted a study of ACS cases involving domestic violence which were ongoing concurrently with the Zone A Pilot Project, but in New York City s other boroughs, entitled "DCP Domestic Violence Evaluation (Non-Pilot Cases)." (Ex. 17) That study found, inter alia, that of the 78 cases involving allegations of domestic violence which were received in the Brooklyn Field Office in a two-month period during the pendency of the Zone A Pilot Project period, 47 of the cases were "indicated." (Ex. 17, p. 8) Of those, ACS removed children in 23 percent of the cases. (Ex. 17, p. 8) That removal rate differed significantly from the 3 percent removal rate in the Zone A Pilot Project. (Ex. 18)

Andrea Reid also found that ACS marked cases "indicated" against mothers in 38 percent of the cases involving domestic violence. In 53 percent of the indicated cases, there was no prior domestic violence. Therefore, in 20 percent of the domestic violence cases (53 percent of 38 percent), ACS marked cases indicated against mothers the first time that they were battered. That statistic is in sharp contrast to ACS claim that it only filed cases against victims of domestic violence after a long history of domestic violence.

Defendants insistence that plaintiffs have no scientific evidence that they remove children from battered mothers ignores the abundance of both anecdotal and statistical evidence. (See, e.g., T. 2379, Ex. Z) To support their claim that such removals do not occur, many of the City s witnesses relied exclusively upon the early results of a study conducted by the New York State Office of Children and Family Services ("the OCFS study"). (E.g., T. 2269-71, 2381-82, 2545, 2569, 2676, Ex. Z) Commissioner Scoppetta relied upon the OCFS study as the sole basis for confirming his "assumption" that ACS does not have a practice of removing children from battered mothers, taking the study at face value without any investigation into its methods or reliability. (T. 2576, 2568-71) That incomplete study was unreliable in several ways, and as such as inappropriate as the basis for Commissioner Scoppetta s opinions.

      5. The OCFS Study

The New York State Office of Children and Family Services studied ACS s records of a randomly selected sample, consisting of 375 investigations in which ACS received reports of child maltreatment between September 1, 1999, and October 14, 1999. (Ex. I at 2) In reviewing those records, OCFS staff found 71 cases involving domestic violence. (Ex. K at 5) OCFS defined a domestic violence case as any case in which there was any mention of domestic violence within four years preceding the investigation, whether or not domestic violence was alleged as the basis of the alleged abuse or maltreatment. (Ex. I at 4-5) According to the OCFS Study, in 1999 ACS removed children from between 80 and 267 battered mothers based solely on domestic violence. (T. 289-90, Ex. 181) Susan Mitchell-Herzfeld, the OCFS employee who oversaw the study, testified that the number of removals could be as much as six times higher, based on the study s own data. (T. 292)

The OCFS Study did not determine whether the ACS applied for court orders prior to removing children in any of the cases, or whether they did so within 24 hours after removal in cases where they removed children without court order (T. 269, 271) The case records did not contain the final determination by the Family Court as to the charges of abuse or neglect. (T. 255-56, 292). Ms. Mitchell-Herzfeld admitted that they "do not have good information about whether there was a finding of abuse or neglect by the court" (T. 260), and that the OCFS Study might underestimate the number of battered mothers charged with child neglect. (T. 293)

Ms. Mitchell-Herzfeld was "satisfied" that the records which were reviewed accurately stated whether ACS removed children in each of the 71 cases. (T. 265) However, the OCFS study found that ACS removed children in only 13 of the 71 cases involving domestic violence, while plaintiffs showed that ACS removed children in 17 cases. (Ex. 169) According to Ms. Mitchell-Herzfeld, the OCFS study showed only one removal based solely on domestic violence (Ex. K). While vouching for its contents, Ms. Mitchell-Herzfeld admitted that she had never reviewed even that case. (T. 295) The evidence showed that in at least one other case ACS removed a child from her mother solely because the mother was a domestic violence victim. (Ex. 137a, 180)

The OCFS study relied solely upon only the opinion of the caseworker as to why a child was removed, rather than upon a court adjudication. (T. 291-92) The testimony showed that such reliance is unwarranted, because the records are inaccurate.

One such record, the "Quality Assurance Form," which was completed by defendant child protective manager ("CPM") Nat Williams in the case of plaintiff Sharwline Nicholson (Ex. 1b), is replete with inaccuracies. For example, the Form claims that ACS staff conducted a home visit prior to removing Ms. Nicholson s children from her custody, but testimony established that ACS made no such visit. The Form states that ACS offered services to Ms. Nicholson, while the testimony established that the only "service" ACS offered was foster care. The Form states ACS consulted one of its attorneys prior to removing the children, while the testimony established that there was no consultation. The Form states that the case was filed in Family Court within 24 hours of removing Ms. Nicholson s children, but Williams admitted that it was not. (T. 884, 886)

The OCFS Study s case sample included only cases which the State Central Register received between September 1, 1999 and October 15, 1999, and which were marked indicated or unfounded before December 7, 1999. (T. 252, 253, Ex. I at 2) During that limited time period, ACS was conducting its Zone A Pilot Project, and focusing increased attention on the issue of domestic violence. (Ex. 18) The OCFS study did not include the events in the case subsequent to the 60-day or 60-day-plus cutoff. (T. 258)

Richard Gelles, Ph.D., City defendants own expert, questioned the accuracy of the OCFS study. He testified that the OCFS study has threats to its validity around measurement issues, and the reliability and validity of the case-reading regarding the key variables. (T. 2382-83, 2413-15) The OCFS study did not include interviews with any of the case participants, other than ACS staff. (T. 2303) While Dr. Gelles recommends that at least 500 cases be examined in conducting a reliable study, OCFS examined only 375 cases in the study. (T. 2385) Of those cases, 125 were marked "unfounded," which meant that removal could not have occurred. (T. 2312) The study was further flawed because staff reviewed case records over a "rather constricted time period" of three weeks (T. 248-49, 2414), and OCFS was under time pressure of a legislative deadline to produce the results of the study. (T. 259, 261) OCFS conducted no inter-rater reliability study on the data collection instrument. (T. 2414)

Dr. Gelles concluded that the OCFS study did not provide appropriate data to determine how many children ACS removed because of domestic violence, (T. 2403-04) and he was unaware of any study which did so. (T. 2403-05) While refusing to acknowledge the existence of an official ACS policy, Dr. Gelles conceded ACS "possibl[y]" removes children from battered mothers solely, primarily, or merely because the mothers are victims of domestic violence. (T. 2402-04)

There are... an unknown number of cases in which domestic violence occurs, and the mother was in no way an offender toward her children, did nothing[,] no act of commission, shall we say[,] towards her children, that the action of a caseworker, supported by a supervisor and the case manager, was clinically inappropriate. We don t know what that number is, but it would be impossible, I think you get total agreement from anyone who understands the child welfare system and domestic violence, to agree that some number occurs.... (T. 2409)

F. Effects of Removal on Children

All of the experts concurred that removal of a child from his or her battered mother can be tremendously traumatic to the child. Dr. Stark, plaintiffs expert, testified that young children, in particular, have a developmental need for a consistent and ongoing relationship with a primary caretaker, and may already have experienced disruption of that relationship because of the domestic violence. Thus, removal B the ultimate disruption B may be particularly traumatic for the young children of these battered mothers. (T. 1562) For an older child, removal "can be experienced as a traumatic act of punishment which reinforces the batterers' view, expressed usually verbally and frequently, that the mother is in fact responsible for the problems in that family, that something she has done or failed to do has caused this separation. . ." (T. 1563)

Plaintiffs' expert David Pelcovitz, Ph.D., a psychologist who has worked with children in foster care, has personally observed that removal is often "devastating" to the children. (T. 60) His research shows that children who are exposed to domestic violence are at a five-fold increased risk for separation anxiety disorder (T. 61) and are at increased risk for a host of difficulties related to higher levels of anxiety. (T. 81) He believes that an in-depth evaluation must be done before removal is considered. (T. 69)

Plaintiff's expert Peter Wolf, Ph.D., a psychologist who works at two foster care agencies (Ex. 142), testified that when a child is removed, she may feel as though a stranger has come to kidnap her. (T. 560) Such separation arouses anxiety in children: "it pokes a hole in the sense [that the child] can trust [that], whatever else goes on, whatever problems,... [he is] not going to be thrown out of the house." (T. 567) Even a child who is removed for a short period of time will suffer a future fear of separation: "if it can happen once it can happen twice." (T. 571) Dr. Wolf described the contrasting effects as follows:

[I]f you don't know what's happening you worry for twenty-four hours a day. If you see what's happening, you are worried -- your primary worry is at that moment. It is the difference between fear and anxiety. Fear is being frightened of what is happening. Anxiety is an anticipatory, what's going to happen, what might be happening.(T. 595-96)

Dr. Gelles, City defendants' expert, agreed that separating a mother and child does a great disservice to the child. (T. 2409)

In its Status Report 3 (Ex. 242), ACS acknowledges the traumatic effect of separating children from their mothers: "[P]lacing a child removed from home into foster care is a traumatic experience. The trauma to a child's life should be minimized through stable placements that maintain family, school, and community ties. Accessible and effective neighborhood-based services should be readily available to a child and family to meet their needs." (Ex. 242 at 130) The Status Report goes on to states that "[t]he goal of placing a child into foster care within that child s home community is critical to ACS' reform of foster care." (Ex. 242 at 48) Yet, in 2000, only 7.3 percent of the foster boarding home placements were in the child s own Community District. (Ex. 242, p. 50)

Moreover, wherever they are placed, children are at risk of child abuse and neglect in foster homes. (T. 2426) "In some cases foster parents are actually more dangerous to the child than the biological parents are." (T. 2427) The rate of indicated abuse and neglect cases in foster care settings has risen, even though the foster care population has declined. (T. 942, Ex. 122) The rate of abuse in foster care jumped from 16.7 percent in 1998 to 28.8 percent in 1999. (Ex. 242, p. 20)

G. Effects on Children of Witnessing Domestic Violence

Plaintiffs' and defendants' witnesses agreed that children are affected by witnessing domestic violence. (E.g., Exs. 137, 139, 141(b), 143, 149, 151, 240, Z, BB) Plaintiffs' and defendants' witnesses, including the experts, also agreed that children's range of response to witnessing domestic violence is extremely broad B from no negative response to severe and traumatic; and that different children are affected differently. (E.g., T. 53-54, 1555, 1616, 1956, 1967-68, 1998, 2376, 2398, 2437-38)

With regard to the degree of maladjustment by children who witness domestic violence, plaintiffs and defendants experts also agreed that the research was inconclusive. Dr. Stark noted, "The literature is all over the place on that data" (T. 1616), while defendants expert Linda Spears confirmed that the data is "a little all over the place." (T. 2027) Ms. Spears acknowledged that "the impact [of domestic violence on children] ranges from none to serious." (T. 1998; see also, T. 2398-39) Jeffrey Edelson, a leading expert and researcher on the topic, cites credible studies which indicate that "many children exposed to domestic violence show no greater problems than children not so exposed." (Ex. 170, p. 4)

Plaintiffs and defendants experts further agreed that even though studies show a co-occurrence between child abuse and domestic violence, no causal relationship has been determined. (E.g., T. 1567, 1954, 1957-63, 2009, 2316-18) Consistent with the testimony and reports of the trial experts, Randy H. Magen, a researcher and recognized leader in the field (T. 64), and co-author of ACS s training materials on domestic violence, states, "The fact that many studies have shown an association between witnessing domestic violence and negative behavioral and/or emotional responses does not mean that witnessing domestic violence causes these negative outcomes. Correlation is not causation." Magen, "In the Best Interests of Battered Women: Reconceptualizing Allegations of Failure to Protect," 4 Child Maltreatment 127 (1999) (Ex. 176)

Despite the experts overwhelming agreement that there is no established causal relationship between domestic violence and child abuse, City defendants actually attempted to establish a connection between domestic violence and child homicide through the testimony of Sonja Mitchell, a consultant to the ACS Accountability Review Panel. Ms. Mitchell s testimony was based on her own informal review of a report of child fatality cases which were known to ACS in the year 2000. (Ex. V, Ex. JJJ) No proof of such a connection existed. In its Annual Report for 1999, the Accountability Review Panel identified domestic violence in the families of 17.4 percent of the children who died. However, the report did not identify how many, and which, cases had only domestic violence and no other "risk factor." Since the report itself shows an average of 2.5 risk factors in each case (Ex. V at 64), in the absence of a breakdown, each factor alone is not predictive. The report also failed to separate the homicide cases involving domestic violence from the cases of death through accidental or natural causes in which domestic violence was also present.

The Accountability Review Panel s own report acknowledged the lack of predictive value of domestic violence for child homicide. (Ex. 242, p. 36) As the report itself states, "It is not possible to identify families in which a fatality will occur." (Ex. V, p. 2) Even for the risk factors, "the information in this table is strictly limited to the small number of cases reviewed and cannot be generalized to any other population." (Ex. V, p. 64) Asserting a claim that the presence of domestic violence leads to the death of children was simply an alarmist tactic by City defendants, not made in good faith. Even ACS s own expert admitted that there are no scientifically valid studies which indicate a link between domestic violence and child homicide. (T. 2418, Ex.BB, p. 5)

H. Exposure to Domestic Violence as Child Neglect

Because the possibility of harm to children from exposure to domestic violence cannot be simplistically defined or predicted, even City defendants experts agreed that exposure to domestic violence should not constitute child neglect per se. Linda Spears, City defendants expert, expressed great concern about the proliferation in other states of statutes which describe exposure to domestic violence as per se neglect or children endangerment. (T. 1966-67) She does not believe that neglect petitions should be filed against non-offending battered mothers (T. 2013, 2026) and cautions that filing petitions against battered mothers can actually decrease safety. (T. 2014-15) Dr. Pelcovitz, plaintiffs expert, likewise criticized any policy which equates domestic violence and child abuse. (T. 76, 78)

With regard to the issue of removing children from the custody of battered mothers, Ms. Spears testified that exposure to domestic violence is not a reason for removing children from their homes. (T. 2029) Dr. Gelles, City defendants expert, likewise does not believe that exposure to domestic violence constitutes immediate danger to a child. (T. 2417) Sherry Frohman, plaintiffs expert, could not think of an instance where emotional harm to a child, caused by witnessing domestic violence, would constitute imminent danger, justifying the immediate removal of the child. (T. 1328)

The New York State Office of Children and Family Services, ACS s parent agency, does not consider exposure to domestic violence to constitute per se child neglect or abuse, and has not even created an allegation code in OCFS s State Central Register to record domestic violence. (Ex. I, p. 1) Commissioner Scoppetta disagrees with his superiors. Contrary to their positions, he states that domestic violence is not only per se proof of child neglect or abuse, but that the State Appellate Division has ruled ACS may remove children solely because they have been exposed to domestic violence. (T. 2576) As described, infra, his understanding of state law is completely inaccurate.

Consistent with Commissioner Scoppetta s position, the ACS "Parent s Guidebook to New York State Child Welfare Laws" tells a battered mother that she is guilty of emotional neglect if her child witnesses her husband yell, curse at, or hit her. (Ex. 118., p. 8)

I. ACS Domestic Violence Projects

Defendants devoted substantial energy at trial to reciting Commissioner s Scoppetta s accomplishments in areas other than domestic violence. (E.g., T. 1928-29, 2232-68, 2491-2522) The testimony of City defendants witnesses and employees with regard to the agency s meager domestic violence efforts was repetitious. It highlighted the lack of a concerted effort to assure that the rights of battered mothers and their children were protected, and showed that ACS does not employ best practices to assure the safety of domestic violence victims.

Defendant s Exhibit II, a memorandum prepared by Associate Commissioner Zeinab Chahine, summarized the agency s efforts related to domestic violence. (T. 1715) Ms. Chahine was not aware of any other planned initiatives (T. 1730), and no other projects or initiatives were described throughout the course of the trial.

In about April, 2000, the Urban Justice Center sponsored a conference which included ACS personnel as well as community advocates and other interested parties. (T. 810, 1165, 1793) Commissioner Scoppetta attended for half a day. (T. 1520) At the conference, a consensus was established that ACS needed a broad policy statement related to domestic violence. (T. 1165, 1793) From that conference, ACS began developing the "Domestic Violence Guiding Principles." (T. 810, 1147) The Domestic Violence Guiding Principles were completed by February 20, 2001. (Ex. 26) Although the witnesses, including plaintiffs experts, agreed that the Guiding Principles are generally positive (e.g., T. 1148), the Guiding Principles are not as comprehensive as the Model Domestic Violence Policy for Counties, which was promulgated pursuant to state law as a guideline for local agencies. (T. 1301) For example, the Guiding Principles do not consider the safety needs of the victim, only the safety needs of the child.

Alisa Del Tufo, M.S.W., from the Urban Justice Center, an ACS contractor deeply involved in domestic violence projects, testified that ACS has not determined how it will implement the Guiding Principles, or what the cost of implementation will be. (T. 1149) Elizabeth Roberts, the ACS Director of Domestic Violence Policy and Planning, testified vaguely that the Domestic Violence Guiding Principles were distributed "widely" to managers (T. 1793) but Andrea Reid, who works within the Child Protective Division, did not know whether the Guiding Principles had been distributed to supervisors. (T. 824)

Dr. Stark, plaintiffs expert, did not find that "ACS adhered to these Guiding Principles either in spirit or in letter." (T. 1597) He found an "absolute divorce of the guidelines from the practice of the agency as revealed in the cases and its own documents that... is critical to the inadequacy of the principles." (T. 1601) Consistent with Dr. Stark s testimony, Ms. Del Tufo concluded that much "needs to be done to actually put... any muscle behind those pieces of paper." (T. 1149)

In approximately March or April 2001, ACS convened the Commissioner s Subcommittee on Domestic Violence "in order to ensure that [ACS] would have input as [they] went forward and took next steps to implement the guiding principles." (T. 1147, 1794. 1930) Half the members of the Subcommittee are ACS personnel, while the other half are representatives of the shelter system, the criminal justice system, and the medical, mental health and domestic violence communities. (T. 1794-95, Ex. GG) The Subcommittee, which is chaired jointly by Dr. Conroy and Linda Gibbs, Deputy Commissioner of Management and Planning at ACS (T. 1924), has met only four times, and has not produced any materials. (T. 1795, 1925-26)

The Subcommittee discussed the claims that ACS too frequently removes children in domestic violence cases. (T. 1933, 1852, Ex. 226) Dr. Conroy testified that the Subcommittee was collecting data on such removals from ACS and, through Ms. Roberts, from advocates. (T. 1933) According to Dr. Conroy, someone on the Subcommittee was in the process of conducting a statistically valid analysis of ACS removals of children in domestic violence cases. (T. 1933) Subsequently, Deputy Commissioner Gibbs testified that there was no such study. (T. 2178)

Despite the success of the Zone C Pilot Project, which ended in 1994, the agency did not continue the project. (T. 1128) There were no other projects to help caseworkers to make decisions about domestic violence cases until another six-month pilot project was begun July 1, 1999, in Zone A of the Manhattan Field Office (T. 801-02, 1128, Ex. 13)

Andrea Reid, who worked on the Zone A Pilot Project, agreed that one objective of that Pilot was "preventing separation [of children] from their mother." (T. 786) One step the Zone A Pilot Project took to meet that goal was to hire a domestic violence specialist, Cheryl Meyers, M.S.W. During the Zone A Pilot Project, workers were required to consult with Ms. Meyers on every domestic violence case that came into Zone A. (T. 800, 1223, Ex. 13) She provided assistance and advice. In some cases, she worked directly with the mothers and children. Early in the project, ACS learned that it was very effective to have a specialist in the field office, and for the workers to have access to technical expertise, guidance, and other resources. (T. 790, 827, 1681) Those resources dramatically reduced the removal of children. (T. 2534)

The project ended in December, 1999, but the 13-page evaluation took more than a year to complete. (T. 805-06, Ex.18) The quantitative data collected by Ms. Meyers on an ongoing basis during the course of the pilot was available long before the final study was released, and the agency was aware that the Zone A Pilot Project was a resounding success. (T. 814-15, 1140) ACS removed children in only five of the 177 cases, a rate of less than three percent.

Despite that success, ACS abandoned the Zone A Pilot Project upon its conclusion in December, 1999, although Ms. Meyers stayed on as a domestic violence specialist for ACS. Caseworkers could and can still consult with Ms. Meyers, but are not required to do so. (T. 800)

Rather than simply hire domestic violence specialists such as Ms. Meyers, ACS now plans to launch a new, untested, model of providing domestic violence expertise to workers, through the establishment of 12 "clinical consultation units." (T. 1693, 1258-59) The units will be staffed by outside consultants, not by ACS employees, and will include domestic violence, substance abuse and mental health specialists. (T. 1693-94). The model involves a Request for Proposals ("RFP") process, which can take as many as ten months after the securing of funding (T. 2535), rather than the simple hiring of new staff (T. 819). The model involves layers of internal and external management. (T. 809, 1157, 1695-96, 2157-58) Unlike the Zone A Pilot Project, for which the domestic violence specialist was assigned as a secondary caseworker to each case and involved in elements of the case such as safety planning (T. 837, 1226, 1229), the new system will emphasize consultancy rather than service delivery. (T. 839, Ex. 136 at 21)

Elizabeth Roberts claimed that the clinical consultation team model being employed by ACS was very similar to the model employed in Massachusetts. (T. 1810) However, Linda Spears, City defendants expert and one of the founders of the Massachusetts program, acknowledged that the ACS consultants will not serve an advocacy function for battered mothers as they do in Massachusetts, but rather a more clinical function. (T. 1982-83) Ms. Meyers expressed concern that the new model will not permit the type of hands-on work that was so successful in reducing removals in the Zone A Pilot Project. (T. 1259) Indeed, the new model dilutes the effectiveness of the domestic violence specialists by consolidating them with other specialists and directing them to report to a supervisor who specializes in medical issues, not domestic violence.

ACS s justification for using the clinical consultation teams, rather than domestic violence specialists, is that ACS often finds domestic violence, substance abuse and mental health issues occurring simultaneously in families. (T. 1811) That finding is contrary to the experience of expert Sherry Frohman. (T. 1330) Moreover, only one of the plaintiff class members before the Court is accurately alleged to have a substance abuse problem B Shqipe Berisha, who suffered from a dependence upon prescription painkillers, and was under a doctors care to treat her condition. (T. 1360-61, Ex. 88)

Andrea Reid claimed that there have not been any "formal" discussions about whether 12 units are adequate to serve all domestic violence victims whom ACS investigates. (T. 824). Deputy Commissioner Gibbs testified unequivocally that 12 domestic violence specialists were adequate (T. 2174), but, in a public meeting on December 19, 2000, Ms. Gibbs stated that the 12 teams will be unable to meet the needs of the caseworkers, because there are "many more workers and many more cases in the system than the consultants can possibly deal with." (Ex. 136 at 21). Alisa Del Tufo anticipates that the specialists will be "immediately overwhelmed." (T. 1158)

The consultant teams will not be a part of ACS staff, although the program manager, program director and quality improvement person will be ACS employees. (T. 818, 1695-96) The domestic violence specialists will not report to Elizabeth Roberts, the ACS Director of Domestic Violence Policy and Planning. Ms. Roberts will merely be part of a "steering committee" that oversees implementation of the project. (T. 1809)

In June, 2001, Zeinab Chahine advised this Court that the teams would be in place by July 2001. (Ex. II, T. 1738) A month later, in a sworn affidavit, Ms. Chahine averred that the teams will be in place in the fall, 2001. (T. 1738) At trial, Andrea Reid, who works for Ms. Chahine, testified that "hopefully" the teams will begin by early 2002. (T. 808)

The details of the consultancies B whether teams will have access to computers and support staff, whether they will have any authority over ACS caseworkers B are still undecided. (T. 822, 1160) Ms. Chahine consistently evaded questions as to whether CPMs would be required to consult with the domestic violence specialists on the teams before removing children, testifying that ACS has "not yet worked out all of the guidelines in terms of... how the referral mechanisms are going to be." (T. 1737) Ms. Del Tufo, an ACS sub-contractor, testified that "it s not exactly clear what the programs that eventually get funded will actually do." (T. 1145) She also expressed concern that issues of confidentiality and consultants access to ACS records have not been worked out. (T. 1158)

On July 19, 2001, Andrea Reid testified that ACS was in the process of revising its child protective domestic violence protocol, case practice guide and case practice template to incorporate the ACS Guiding Principles on domestic violence. (T. 810) One day later, ACS completed the revised drafts of its casework practice guide, domestic violence protocol and child protective template (Ex. PP, QQ, CCC), and unveiled those documents during the testimony of Zeinab Chahine. (T. 1675-77) According to Ms. Chahine, the new documents were distributed to the CPMs, deputy directors and directors, on July 27, 2001, in draft form, prior to their approval by OCFS. (T. 1722) The distribution of drafts was "with the understanding that they will start discussing them with their front line supervisors in preparation for issuing these documents to staff." (T. 1722) There was no testimony as to any more substantive plan for training staff or for implementing the new documents. (T. 1722, 1724)

Alisa Del Tufo, who has been involved in developing interventions directed toward the overlap between child welfare and domestic violence for nearly 10 years, testified that using the protocol on cases for which allegations of domestic violence already identified was "not a particularly effective way to use a domestic violence protocol." (T. 1142)

Both plaintiffs and defendants witnesses agreed that the new documents articulate some good principles. (E.g., T. 1979) But Dr. Gelles, defendants own expert, testified that even he does not give ACS "a passing grade" with regard to their assessment tools (T. 2428): "We don t know whether they could be reliably filled out by workers." (T. 2428) Dr. Stark was concerned with the absolute nature of some of the questions on the current version of the protocol (also in the new draft version of the protocol); in particular, with the designation of cases as high risk when a parent simply answers "yes" to certain questions. (T. 1587)

The haphazard way in which the new documents were developed and may be used by caseworkers was underscored by the fact that the case sample provided to workers does not illustrate how to screen for domestic violence. (Ex. CCC, T. 1842) On the contrary, in the sample case provided to workers, there are repeated "red flags" for domestic violence, such as indications that the mother and child are afraid of the father, that the father yells at the child, that the mother does not confront the father because of his problems with anger, and that mother reports that the father has a temper. (T. 1843-44) Yet the sample tells workers that there is no need to inquire about domestic violence in that fictitious family. (Ex. CCC) Elizabeth Roberts admitted that she had not reviewed that section of the Case Practice Guide (T. 1844), once again illustrating that ACS does not address domestic violence in a systematic matter.

Although ACS expects to uncover more cases involving domestic violence with the new documents (T. 1735), there are no firm plans for training and oversight. Zeinab Chahine confirmed that ACS expects to uncover more instances of domestic violence through use of the new materials, yet could articulate no meaningful preparation for handling that shift, other than hoping that 12 clinical consultant teams will be able "to help... identify the gaps." (T. 1735-36) The new protocol instructs workers to contact domestic violence specialists; yet, at present, there is only one such specialist in the entire agency. (T. 1738)

Dr. Stark fears that lack of accountability within ACS as to domestic violence issues will preclude effective use of the protocols: "protocols are as good as the authority structures that implemented them.... It s appropriate if there is an accountability structure in which a protocol is expected to be implemented and where people are held accountable for using the protocol." (T. 1583) Once again, without appropriate training and monitoring, good intentions will lead to bad programming, and ACS s primary tool of intervention will be removal. (E.g., T. 1145-46)

The Family Violence Prevention Project ("FVPP") is a program for preventive service agencies which contract with ACS to provide services to families at risk. (T. 1154, Ex. MM, NN) The program is operated in conjunction with the Urban Justice Center. (T. 1121, 1154) The project does not involve ACS employees, or any child protective workers who make decisions about removing children. (T. 816, 1155, 1173) ACS pays for only a portion of the project; the Urban Justice Center secures the rest of the funding from other sources. (T. 1155)

About 50 preventive agencies, out of 168, participate in the FVPP. (T. 805, T. 1124, Ex. MM, TT) Participation in the FVPP is not mandatory (T. 815, 1161), and it is not mandatory that ACS caseworkers refer battered mothers to preventive programs who have actually been trained through the FVPP. (T. 815-16) Several witnesses said that the preventive agencies want additional training, which is not being provided because ACS does not fund it. (T. 1155, 1174)

J. ACS Domestic Violence Training

Intensive training is essential to avoid bad practices in child protective cases involving domestic violence. (T. 1931) Dr. Conroy, witness for City defendants, so stated, and her testimony was consistent with that of Dr. Stark, plaintiffs expert, who noted that protective workers can create and aggravate safety dilemmas for battered mothers with inappropriate interventions. (T. 1569) ACS domestic specialist Cheryl Meyers believes that better training for caseworkers contributed to the relatively low rate of removal in the Zone A Pilot Project. (T. 1267) Alisa Del Tufo opined that increased screening, without assiduous monitoring, would lead to increased removal and other negative interventions. (T. 1126, 1145) Dr. Gelles, City defendants expert, agreed that in the absence of knowledge, child welfare workers may make poor decisions. (T. 2429)

Caseworkers themselves know the value of training. The caseworkers who participated in the Zone A Pilot Project stated that they wanted more training on domestic violence issues. (T. 1141, Ex. 18) ACS caseworkers have also told the New York State Coalition Against Domestic Violence, an organization that provides such training, that they would like to have more and appropriate domestic violence training. (T. 1285, 1287)

Despite overwhelming consensus as to the importance of training, ACS training on domestic violence is woefully inadequate. Part of the inadequacy stems from ACS devoting insufficient resources to training on domestic violence issues. (T. 1175) However, the most glaring inadequacy is that the training program does not teach caseworkers how assess the safety (or lack of safety) of children in domestic violence cases. (T. 1938) Thus, the program does not train workers in making critical decisions regarding children, such as whether or not to remove the children from their mothers.

ACS presently uses a domestic violence training module for new caseworkers which was created by Dr. Conroy and Dr. Randy Magen, professors at the Columbia University School of Social Work. (T. 1168, 1918, 1305-06, 2523, Ex. 115, 116, 116a) Drs. Conroy and Magen developed the module as part of a 1993 study of the effect of such training on workers attitudes toward domestic violence and impact on practice. (T. 1938)

The domestic violence training module lasts for 10 hours (Ex. 115, 116, 116a) and is conducted over two days. (T. 1177, 1776, 2142, 2524) Although the module itself states that it is not intended to be an introduction to domestic violence, training expert Sherry Frohman noted that ACS uses the module in precisely that manner. (Ex. 149; see also, T. 1307-13) Ms. Frohman found various other deficiencies in the module, including that "the curriculum does not provide the necessary foundation for understanding the root causes of domestic violence and the effects that domestic violence has on abused women." (Ex. 149, p. 1)

While the curriculum refers to batterer accountability, it fails to train caseworkers on what that entails and how caseworkers should promote batterer accountability. (Ex. 149, p. 2) Rather, the curriculum promotes the false notion that the victim is solely responsible for holding the batterer accountable. (Ex. 149, p. 2) Ms. Frohman notes, for example, that the curriculum suggests that a victim obtain an order of protection, but does not train caseworkers on how ACS can obtain an order of protection on behalf of the children or itself petition to have the abuser removed from the home. (Ex. 149, p. 2)

In addition, the training module wrongly overemphasizes the psychological ambivalence and passivity of battered women, and does not adequately prepare caseworkers to intervene appropriately in domestic violence cases. (T. 1575, 1577, 1307-13) By over-emphasizing ambivalence and passivity, the ACS training denies caseworkers the single most important tool available when going into a home where there is domestic violence: the battered mother s knowledge of the situation and her strength in dealing with the domestic violence in the past. (T. 1578) Dr. Gelles, City defendants expert, agrees that the battered woman is hardly passive, but rather "she actively seeks to prevent further victimization and is handicapped, not by her own psychological limitations, but by the lack of concrete and effective remedies available from agencies of social control and other social institutions." (T. 2425)

Unfortunately, ACS staff have learned well the wrong-headed lesson which the module teaches. ACS child protective manager James Stewart testified that "one of the things that we were always taught to recognize is that victims are... helpless." (T. 498)

While City defendants expert Linda Spears thought that the training was "absolutely sound," her concern that "the current training does a little better [than the prior version] as skill building[,] but there is still more work to be done to apply that directly to the job that workers need to do" (T. 1988) mirrored the concerns of plaintiffs experts. Dr. Gelles, City defendants expert, agreed that the current ACS training "does not seem to have much of a conceptual framework around which to train workers how to see cases." (T. 2430)

Because of the 1996 re-structuring of the agency, Drs. Conroy and Magen were not able to complete their study of the effectiveness of the training. (T. 1920) Dr. Conroy has done no further research on the impact of a domestic violence training curriculum. (T. 1939)

Although Deputy Commissioner Gibbs believes that "the quality of practice has to depend on the quality of supervision" (T. 2146), it is unclear whether domestic violence training is being provided to the supervisors and Child Protective Managers, who are responsible for making removal decisions in domestic violence cases. Both Ms. Del Tufo and Ms. Meyers testified that such training is necessary because the caseworkers do not make the final removal decisions. (T. 1179, 1240) Ms. Del Tufo testified that, in that her experience as an ACS consultant, she often encounters situations where an ACS caseworker has developed an effective service plan that does not include removal, "but then that case practice will get overturned by a manager or a DLS attorney.... " (T. 1179) Ms. Del Tufo s experiences, based on her dealings with many caseworkers, are consistent with the evidence as to what transpired in many of the plaintiff class members cases. (E.g., T. 1234-35, 1236, 1237-39)

It is also not clear whether ACS attorneys currently receive domestic violence training. ACS domestic violence specialist Cheryl Meyers has never provided training to ACS attorneys, and has never been asked to train them. (T. 1273) While defendants expert Linda Spears, who obtained her information from Elizabeth Roberts, testified that she was "pleased to see it existed," (T. 2045) Ms. Roberts herself said that current attorney training involves only a "brief discussion" of domestic violence for new attorneys, and nothing for current attorneys. (T. 1859) Commissioner Scoppetta and Elizabeth Roberts testified that domestic violence training for ACS attorneys is still in the planning stages. (T. 1807, 2596)

The evidence established that good training programs already exist, but that ACS does not take advantage of those programs. The New York State Coalition Against Domestic Violence, a state-wide organization funded in part by the state and the federal governments, regularly offers training and technical support free of charge (T. 1284) to agencies throughout New York City. (T. 1281-85) The New York City Police Department, Department of Probation, Department of Mental Health, Office of Court Administration and Human Resources Administration all regularly call upon the Coalition for assistance in developing protocols, training and practices, and collaborate with them on domestic violence projects. (T. 1281-85) However, over the past five years, ACS has had limited contact with this established domestic violence agency, and has never reached out to the Coalition to provide training or consultation. ACS did not respond to the Coalition s invitation to participate in a large-scale conference that the Coalition held in June, 2000. (T. 1285, 1292)

ACS domestic violence specialist Cheryl Meyers has conducted informal training in Manhattan and, once, in Brooklyn, upon her own initiative. (T. 1229-30, 1244, 1254-55, 1272) Attendance at Ms. Meyers program is not mandatory. (T. 1265)

In 2000, ACS conducted a special training course for supervisors. According to ACS s own assessment, only 63 percent of the registered participants completed the training. (Ex. 242 at 12.) It does not appear that this training included domestic violence.

ACS child evaluation specialists, who facilitate the family team conferences, were trained by Susan Urban, the former domestic violence coordinator. (T. 1700) But the four-hour training that Ms. Urban provided to the facilitators was "far from enough." (T. 1521) Further, there was no evidence that ACS has provided any domestic violence training to the child evaluation specialists since Ms. Urban left ACS in June, 2000. (T. 1483)

Various witnesses including Andrea Reid, Elizabeth Roberts, Commissioner Scoppetta and Linda Spears testified that ACS is in the process of revising and modifying both the core and domestic violence training curricula. (E.g., T. 811, 1802, 1986, 2536) The testimony regarding training was ambitious, with little substance. Ms. Roberts testified to a laundry list of new training initiatives (T. 1801-09), but none of the domestic violence trainings have curricula or scheduled dates. The Commissioner s Draft Renewed Reform Plan (Ex. R) said that ACS would complete revised training materials by July 31, 2001, while in the final version, released on August 13, 2001, the deadline has moved to December 31, 2001. (Ex. QQQ) Alisa Del Tufo, who is involved in developing the new domestic violence training curriculum, said that the working group had not made substantive progress on revising the training. (T. 1168)

ACS s new core curriculum will devote only one day to domestic violence issues (T. 1803), as opposed to the two days which it devotes now. (T. 1177) During the new one-day training, workers apparently will be taught how to use the various domestic violence procedures and protocols, as well as practicing interviewing techniques (T. 1803) ACS plans to provide two or three days of additional training on domestic violence during caseworkers first year on the job, although, again, Ms. Roberts has not yet completed that training curriculum. (T. 1805) Based on a several telephone conversations with Elizabeth Roberts and one telephone conversation with Zeinab Chahine, defendants expert Linda Spears supported the planned training (T. 1987-89), although she did not review any of the new curricula. (T. 2010)

With regard to the new draft materials unveiled during the trial, City defendants provided no plan for training, distribution or implementation. For management staff, training on the new materials apparently consisted of a brief presentation by a panel of speakers at a "Management Planning Retreat" held during the trial. (T. 1689, 1800, Ex. SS) The agenda for that retreat does not include an indication that such training occurred in any formal manner. (Ex. SS) Because of the "short notice," staff from the Division of Legal Services did not attend the retreat. (T. 1729)

During cross-examination, Ms. Chahine, like Ms. Roberts, attempted to paint a picture of a training plan for supervisory staff, yet could not articulate any actual steps that had been taken or were scheduled to be taken beyond distribution of materials at the July 27, 2001, management retreat. (T. 1723-25) Ms. Chahine acknowledged that it would take a long time to do formal training on the guidelines for all 1700 ACS staff. (T. 1775) Ms. Chahine also testified that she and Ms. Roberts had "discussed follow-up sessions" (T. 1693) and that they had "definite plans" on integrating the new materials into their training curricula. Ms. Roberts, on the other hand, testified that she intended to discuss training when she next met with Ms. Chahine in the following few weeks. (T. 1836-37) In the midst of the inconsistent testimony as to whether planning meetings had occurred, ACS provided no evidence of any actual plan for follow-up to ensure that the quality of the practice in the field offices is consistent with the new guidelines.

K. Lack of Organizational Commitment to Domestic Violence

Within the organizational and accountability structure of ACS, those with domestic violence expertise have little or no power and authority to make policy, or to hold caseworkers responsible for their practice. (T. 1607, Ex. 143a) Even Dr. Gelles, City defendants expert, found "a pretty big disconnect" between the issues and goals discussed at ACS headquarters and the actual actions of the caseworkers and supervisors on the front line. (T. 2407, 2438)

Only four persons at ACS have jobs that include domestic violence as a component; of those, only two work exclusively on domestic violence issues. (T. 1150, 1152, Ex. 126) Andrea Reid, at a Supervisor II level within the Division of Child Protection (T. 782), works on multiple policy issues including domestic violence, education and fatalities (T. 782). She reports to Zeinab Chahine, Associate Commissioner for Division of Child Protection. (T. 782) No one reports to her. (T. 782-83) Elaine Wolff, who works in the Management and Planning Division, apparently has included in her duties oversight of the Family Violence Prevention Project for the non-governmental preventive services agencies. (T. 1151) She did not testify at trial.

Elizabeth Roberts works exclusively on domestic violence issues, as the Director of Domestic Violence Policy and Planning. Confusion about the exact accountability, roles and responsibilities of Ms. Roberts was evident throughout the testimony and evidence. (E.g., T. 1826-1833, Ex. 28, Ex. HHH) At the time of trial, Ms. Roberts did not have any staff, although she testified that she intended to hire two staff persons. (T. 1827)

Cheryl Meyers works exclusively on domestic violence issues, as a domestic violence specialist in the Manhattan Field Office. She is at a level of Supervisor II. When she was hired as the domestic violence specialist through the Zone A Pilot Project, Ms. Meyers was not given an office. (T. 1508) She was not formally introduced to the staff of the field office but rather took it upon herself to walk around and introduce herself. (T. 1135, 1242, 1508) Since the conclusion of the Zone A Pilot Project, Ms. Meyers, arguably the most capable and competent practitioner on domestic violence issues within the entire agency (e.g., T. 1138, 1224-28), has been involved in domestic violence cases only when caseworkers are "stuck, where they can t figure out what to do." (T. 1250) Dr. Stark noted that her involvement suggests that she is called upon not when caseworkers face domestic violence issues which need to be resolved, but when the domestic violence creates administrative dilemmas for the caseworkers. (T. 1608)

Ms. Meyers has no authority to overrule the decision to remove a child from a battered mother. (T. 1236) Three specific cases proves that point: in the cases of Michele Garcia, Donna Darabasie, and an unnamed plaintiff class member, ACS removed children from battered mothers despite Ms. Meyers efforts and recommendations to the contrary. (T. 1234-35, 1236, 1237-39; see also T. 1153)

Although Ms. Meyers is the only ACS employee with domestic violence expertise who works with caseworkers on a daily basis, ACS excluded Ms. Meyers from participating in the revision of the new assessment instruments. (T. 1153, 1719) She was excluded despite the fact that Ms. Chahine testified the Zone A pilot was one impetus for revising the materials, and for testing different assessment tools and methods. (T. 1680) ACS did not request Ms. Meyers input in the creation of its Domestic Violence Guiding Principles. (T. 1274) ACS did not invite Ms. Meyers to participate in the Commissioner s Subcommittee on Domestic Violence. (T. 1274) ACS excluded Ms. Meyers from participating in the selection process for the consultants who will serve as domestic violence specialists (T. 1274), despite Ms. Meyers experience and expertise as ACS s only domestic violence specialist.

Ms. Meyers marginal role is similar to that of Susan Urban, who held the position of domestic violence coordinator from 1997 to June, 2000. (T. 1483) Because the position was several levels down from the policy-making level, ACS did not permit Ms. Urban to participate in new initiatives, such as discussions about implementing the instant response team model in cases involving domestic violence and developing Requests for Proposals to include consideration of domestic violence. (T. 1511-12) She did not supervise ACS s one domestic violence specialist, nor was she involved in the hiring process. (T. 1518) ACS did not even keep Ms. Urban apprized of what was going on. (T. 1496)

City Defendants attempted to perpetuate the myth of organizational commitment to domestic violence by reference to ACS s newly-established Commissioner s Subcommittee on Domestic Violence. The evidence showed that the subcommittee has little relevance to ACS s day-to-day work. Neither Andrea Reid nor Cheryl Meyers B two of the four ACS employees who work on domestic violence issues B are even members of the Subcommittee. (T. 818)

The evidence also establishes that City defendants greatly exaggerated the authority of the Subcommittee. For example, Ms. Roberts testified that the Commissioner s Subcommittee looked at the Guiding Principles and provided feedback (T. 1796); however, the Domestic Violence Guiding Principles were officially released on February 20, 2001 (Ex. 26), at least a month before the Subcommittee s first meeting. (T. 1147) Andrea Reid, Zeinab Chahine and Elizabeth Roberts testified that revised case practice documents related to domestic violence (Ex. PP, QQ, CCC) were submitted to the Subcommittee to edit, to comment upon and to offer input. (T. 806, 1688-89, 1797) Yet, Dr. Conroy, the co-chair of the Subcommittee, has not seen either the new screening questionnaire or revised case practice guide. (T. 1931)

Plaintiff s witness Laura Fernandez, M.S.W., testified that one strength of the Massachusetts program was that it employed a "top down" approach B the Domestic Violence Unit was located at the central office and "was viewed as being very well connected politically." (T. 1408, 1445) ACS s placement of domestic violence on the margins of its agenda and organizational structure, and ACS s failure to devote substantial resources to domestic violence efforts, or to build significantly upon existing programs, leads to "the inappropriate emphasis on the only resource that the agency has available and caseworkers have available... namely, placement." (T. 1610) Susan Urban, the former domestic violence coordinator, who has a wealth of experience in both domestic violence and public administration, concluded that:

[B]ecause of the complexity and difficulty of the subject, that substantive change would not occur without leadership from the top of the agency, that would then go down to all the layers, so that the people actually doing the work understood the agency s philosophy and beliefs on the subject as well as had actual skills with which to proceed. (T. 1518)

ACS s lack of organizational commitment to domestic violence is also reflected by the lack of funding and resources dedicated to domestic violence. Though ACS s annual budget is $2.3 billion (T. 2528), it spends only $200,000 on outside consultants at the Urban Justice Center, a highly respected service provider (T. 1122, 1152-53), and has allocated about $200,000 for Ms. Roberts and her two new staff members. (T. 2161) The budget for the much-heralded clinical consultation teams allocates only $900,000.00 for domestic violence. (Ex. 34, p. F000004) (Only 12 of the 48 individuals funded by the $3,548,000 project are domestic violence specialists. The remainder are mental health specialists, substance abuse specialists, and administrators.) ACS does not fund any preventive services in the area of domestic violence. (T. 2177)

Ironically, the ACS Domestic Violence Guiding Principles declare that "staff should be equipped to effectively identify and respond to domestic violence and have access to expert consultation and adequate resources." (Ex. 21) Once again, the rhetoric is belied by the reality.

According to Ms. Spears, City defendants expert, ACS does not currently have mechanisms for reviewing the implementation of policies related to domestic violence, for examining the effectiveness of case outcomes, or for data collection. (T. 2047-48, 2057) This lack of accountability structure related to domestic violence sends a message to caseworkers that they are not required to adhere to the Guiding Principle or protocols. (T. 1608) Even during the Zone A Pilot Project, purportedly focused exclusively on domestic violence practice, there was little caseworker or manager accountability for following protocol or attending training. (T. 1143, 1144, 1178, 1260, Ex. 18)

Ms. Chahine implied that ACS has procedures to monitor compliance with ACS principles and protocols related to domestic violence (T. 1727); the implication was not supported by any evidence or testimony. She testified generally that the managers, directors and deputy directors will be responsible for ensuring that there is practice compliance with the Guiding Principles and various protocols and procedures. (T. 1714) As stated above, ACS has provided only one hour of informal training on the materials to its management, some of whom did not receive the Guiding Principles until July 27, 2001, when the domestic violence management conference was held in the middle of this trial. CPM Roberto Chamorro stated that he is not responsible for training caseworkers in his unit on the use of the protocol. (T. 183)

Ms. Chahine s testimony on the point of accountability was evasive, including no substantive plan. (T. 1727) She failed to say whether accountability review would track the frequency with which CPMs ordered the removal of children. (T. 1769) Instead, she described, generally, a new ACS effort to enhance accountability within the agency, "which requires all level of supervisory, managerial, deputy director, director staff to actually review cases." (T. 1713, see also, T. 2593) She also testified about supervisory reviews of caseworker actions, which are included in the templates. (T. 1713-14) Deputy Commissioner Bell also described an automated tracking system, which he described as "essentially our accountability system." (T. 2287) Through that system, the agency assesses whether caseworkers, supervisors managers are meeting various time deadlines during the conduct of investigations. (T. 2286) ACS does not review the correctness of the decisions that were made.

Commissioner Scoppetta was not aware of any instances in which, through the accountability system, a removal was found to be unnecessary or unjustified. (T. 2594) Neither Deputy Commissioner Bell nor Ms. Chahine were aware of any cases in which an employee was disciplined for removing a child unnecessarily. (T. 1772, 2315) CPM Stewart does not know of any cases in which caseworkers or supervisors have been disciplined or criticized for removing children unnecessarily. (T. 545)

The lack of accountability was made abundantly clear by the fact that not a single person within ACS testified that they investigated the claims of plaintiffs or the class members. Commissioner Scoppetta did not conduct any inquiry into the many cases brought before the Court to determine whether improper practices were employed and could not identify anyone within the agency, other than the attorneys, who had. (T. 2579-82) He had seen only five or six of the complaints related to plaintiff class members. (T. 2544) The Commissioner s Subcommittee on Domestic Violence has not discussed cases of any class members. (T. 2171)

With the exception of some documents in the Udoh matter, which "came across" her desk, Ms. Chahine never read plaintiffs records, despite the fact that they raised complaints as to ACS practice. (T. 1747) Ms. Chahine never spoke to the caseworkers or child protective managers involved in any of the cases of plaintiff class members. (T. 1748) Ms. Roberts did not investigate any of the dozens of cases brought to the attention of defendants, in which plaintiffs claimed that ACS erred. (T. 1870)

Linda Gibbs read some summaries of the cases of the named plaintiffs prepared in litigation, but did not investigate any of the cases which plaintiffs claim illustrate unconstitutional practice. (T. 2170-71) Mr. Bell has not read the complaints or case records of any of the named plaintiffs, or of any of the other class members whose complaints were brought his attention. (T. 2298-99) In fact, Mr. Bell did not conduct any type of investigation into any of the cases (T. 2299), and although he claims that the cases were reviewed by other people on his staff, he does not know the results of those alleged investigations. (T. 2330)

L. Actual Practice and Policy in Cases Involving Domestic Violence

ACS did not present a single witness to establish that ACS implements its Domestic Violence Guiding Principles in actual case practice, either in the cases of the known plaintiff class members or in other cases. Neither of the City defendants experts assessed ACS s actual practices in domestic violence cases. (T. 2041, 2384) Although Ms. Spears vouched for the quality of ACS case practice, she did not visit any field offices or interview any caseworkers or clients. (T. 2005) Ms. Roberts admitted to Ms. Spears, City defendants expert, that individual case practice varies within ACS, and that there may be errors. (T. 2007) But, conveniently, Ms. Spears did not inquire about the nature of those errors (T. 2046) or survey the cases which were before the Court and in which plaintiffs claim there were errors. (T. 2022)

The testimony, particularly that of the CPMs, each of whom is responsible for making decisions on removing children hundreds of times each year, established that there was more than just "errors" from time to time in individual cases but rather pervasive unconstitutional behavior, and an appalling failure to assure that practice follows purported policy.

The Domestic Violence Guiding Principles appropriately discuss batterer accountability, stating that, "Mechanisms for holding abusive partners accountable may include criminal justice and law enforcement interventions, and required participation in batterer intervention programs." (Ex. 21) Consistent with the Guiding Principles, Dr. Stark testified, "it s the general opinion in the field and the best practices recognize that the single most effective strategy in protecting children in homes where there is domestic violence is removal and sanctioning of the offending party and doing whatever is necessary to insure that the offending party cannot revictimize the two victims, the child and the primary caretaker. . . ." (T. 1564)

Despite ACS s purported commitment to holding batterers accountable, Dr. Stark concluded, upon extensive review of ACS documents, case files and deposition testimony, that "there is absolutely no evidence... that an effective liaison and an enhanced advocacy of criminal justice services is a requisite of any ACS intervention in a domestic violence case." (T. 1600) In fact, ACS Criminal Justice Coordinator Peter Alexander stated repeatedly that it is "not ACS s business" to seek the arrest of the abuser or to assist battered mothers in prosecuting adults who abuse them. (Ex. 257 at 65, 70, 87; see, also, T. 105)

There was no evidence at trial of even one case in which ACS caused or contributed to holding the batterer accountable for his behavior in any meaningful way. In fact, in the case of April Rodriguez, not only did ACS fail to hold the batterer accountable, they turned the children over to his custody. (T. 392-94, Ex. 92) CPM Roberto Chamorro admitted that even if a caseworker learned of a situation of a batterer with a gun, ACS would remove the child rather than take steps to have the batterer arrested. (T. 102) Indeed, in several of the cases, ACS did not bring neglect proceedings against the batterers until they had decided to commence proceedings against the victims, and simply added the batterers to the petitions, as almost afterthoughts.

The Domestic Violence Guiding Principles provide that "every effort should be made to provide safety without separating the non-abusive parent and child." (Ex. 21) Those Guiding Principles further emphasize the provision of proactive services to avoid child removal. It is well-established as best practice in the field that in a home in which there is domestic violence, the best method for protecting the child is to protect the mother: "Enhancing mothers safety and stability is a major avenue for providing their children with safe, stable and nurturing environments." (Ex. 156, p. 5, see also, T. 686, Ex. 240)

Based on the evidence, it cannot be said that ACS staff make "every effort" to provide safety prior to removing children in domestic violence cases, as is contemplated by the Guiding Principles. Regardless of what the Guiding Principles say, the child protective managers, who are collectively responsible for thousands of cases, do not believe that they are required to make "every effort" to ensure safety prior to removal. According to CPM Roberto Chamorro, ACS may decide to remove a child prior to conducting any investigation at all, based on only the information in the initial report. (T. 100-01) Thus, Chamorro made the decision to remove Crystal Rhodes children before his caseworker met with Ms. Rhodes. (T. 204) That practice is consistent with the testimony of CPM Nat Williams, who admitted that in making the decision to remove Ms. Nicholson s children, he never spoke to her. (T. 863) Williams also directed the removal of Jane Doe s child without any investigation whatsoever. (Ex. 180, p. S01651)

Moreover, having determined that Ms. Nicholson and Ms. Rhodes should not return home, ACS did not locate any safe place for those mothers to reside with their children. (T. 861-62) In the cases of Ekaete Udoh and Sandra Determan, having determined that the abusers should be arrested, ACS did not make any effort to effectuate the arrests. In the case of Sharlene Tillet, having determined that the child s safety was compromised by the mother s lack of a crib, ACS did not make any effort to help her secure what they considered to be appropriate bedding.

According to the Domestic Violence Guiding Principles, the victim should be provided with ongoing safety planning. (Ex. 21) In reality, ACS staff seems to have little or no understanding of what safety planning is or how to conduct it, employing a cookie-cutter approach which assumes, for example, that shelter, separation, arrests, and orders of protection are safe options in every case. (E.g., T. 1598) Further, CPM Williams testimony that a battered mother may obtain an order of protection from a police precinct, which was subsequently refuted by numerous other defense witnesses (e.g., T. 1764, 2478), illustrates a gross misunderstanding of one of the basic elements of safety planning in domestic violence cases. Although Ms. Chahine knew that a battered mother cannot obtain an order of protection from a police precinct, she was not familiar with the circumstances under which a battered mother may obtain an order of protection from the Family Court, nor did she know whether the family conference facilitators were familiar with that basic component of safety planning. (T. 1765)

Dr. Stark, among others, emphasized the mother s strength in making decisions that best serve the safety and welfare needs of her children. (T. 1578) However, there is an abundance of evidence that ACS does not permit battered mothers to contribute to decisions about their children s safety once a child neglect claim has been made. For example, CPM Williams deprived Ms. Nicholson, a battered mother who was herself not alleged to be a danger to her children, of decision-making power simply because she had been beaten. He testified that the children were at imminent risk because their mother was the victim of domestic violence B "because she was not, at that time, able to protect herself nor her children because Mr. Barnett had viciously beaten her." (T. 864-65) He refused to allow her to decide who would care for her children while she was in the hospital and after she was released. (T. 857-58) He refused to allow Ms. Nicholson to return to her home (T. 861-62), never even asking her why she believed that she and the children were most safe there. (T. 869)

Dr. Gelles, defendants expert, testified that requiring a battered mother to prosecute her abuser as a condition of keeping her children would be an inadvisable policy. (T. 2434) Yet, in the cases of Michele Garcia, Sandra Determan, and others, ACS unilaterally imposed the requirement of prosecution upon the mothers. (T. 2434) According to CPM Dorabella Delamothe, responsible for about 20 caseworkers and about 400 cases (T. 2236), Sharlene Tillett should have reported the domestic violence to the police so that "there would be a record." (T. 1076) Delamothe failed to consider that police intervention might have aggravated the situation and increased the danger to Ms. Tillet and her baby. (T. 1603)

Multiple City witnesses testified that it may not always be appropriate for battered mothers to seek an order of protection, (T. 2471-72) because doing so may actually increase the danger to the women and children. But, in practice, ACS punishes mothers who fail to obtain such orders, by removing their children, claiming that the mothers are unwilling or unable to protect themselves or their children. (T. 870-71) Ms. Rhodes was charged with child neglect simply because, having filed for an order of protection, she did not return to the Family Court to seek its extension. (T. 217-8) Ms. Rhodes advised ACS that she did not return to Family Court because she did not feel safe returning to the home from which she had fled (in order to retrieve her court documents and metro card), a rational safety plan which ACS completely disregarded.

Not only does ACS staff lack the skills to conduct safety planning, their actions frequently increase the danger to battered mothers. For example, although couples counseling is not a good practice in domestic violence cases (T. 2039), and defendants own domestic violence template (Exhibit QQ) warns caseworkers not to refer parents to couples counseling in domestic violence situations, ACS practice is just the opposite. In the case of Jane Doe, after Ms. Doe separated from her abusive, alcoholic husband, ACS forced her to attend family counseling with him. She asked ACS for help when her husband resumed drinking (Ex. 180; T. 1433), but ACS ignored her. Instead, after her husband threatened her with a knife, CPM Nat Williams ordered that Ms. Doe s child be removed. He gave that order without speaking to Ms. Doe, and without exploring any safety planning whatsoever, such as shelter, arrest, etc. (Ex. 180, p. S01651)

CPM James Stewart moved April Rodriguez s children from their mother to their father, even though he had been arrested for domestic violence and had a prior indicated child abuse case, because CPM Stewart claimed that she failed to provide adequate child care for the children while she was at work. (T. 501) Crystal Rhodes fled her home after an incident of domestic violence, because the police had not taken the keys from the abuser when serving him with an order of protection. (T. 210) Her rational safety plan -- to flee the home with her children -- was disregarded by ACS, who required Ms. Rhodes to bring her children back to the home and wait there until 7:00 p.m., when the caseworker arrived to remove them. (Ex. 171B, pp. 24, 25)

Sherry Frohman, plaintiffs expert and an experienced domestic violence practitioner, testified that safety plans should never be kept in ACS files, as there are no assurances of confidentiality, citing an instance in which a woman was killed because her abuser read the child protective file containing her safety plan. (T. 1322-32) But, while ACS recognizes that the danger of written safety plans, ACS requires caseworkers to put safety plans in writing. (T. 1685) That practice is particularly dangerous to the mothers and children, as ACS records are available to batterers in normal discovery. N.Y. Fam. Ct. Act. Sec.1038; N.Y. Soc. Serv. L. Sec.422(7).

Ms. Frohman also testified that a battered mother must never be required to adhere to a safety plan as a condition of keeping her children, because a safety plan must be fluid and flexible. (Ex. 149) However, the evidence shows that ACS is obsessed with assuring that battered mothers comply with the requirements which ACS has laid out for them, with little room for fluidity or flexibility. ACS mistakenly equates "service plans" with "safety plans," and interprets a battered mother s refusal to agree "as a refusal of services rather than as part of the negotiation which we all do to develop effective safety planning." (T. 1598)

The Domestic Violence Guiding Principles provide that "non-abusive parents must not be held accountable for the violence committed by others." (Ex. 21) Yet, ACS staff consistently hold the non-abusive mothers accountable for violence committed by batterers, especially by marking cases against them "indicated" for child neglect and prosecuting them for child neglect in the Family Court.

Linda Spears, City defendants expert, acknowledged that ACS "sometimes" files neglect petitions against battered mothers, charging them with engaging in domestic violence where they have actually only been victims of the violence. (T. 2019) Ms. Roberts knows that some workers see a battered mother as "engaging in domestic violence" and document her victimization in that way. (T. 1823) Thus, CPM Delamothe testified that plaintiff Sharlene Tillett "engaged" in domestic violence although she was the victim of the violence. (T. 1074)

The evidence showed that, in its neglect petitions, ACS frequently claims that battered mothers who are simply the victims of domestic violence are neglectful for "engaging in domestic violence." (E.g. T. 1823-24, Ex. 4a, 160a, 91a, 102, 180 at Z5863, 231, 244) Mr. Segal testified that ACS typically filed petitions in which both parents were charged with "engaging in domestic violence." (T. 129-30) According to Mr. Segal, in a significant number of the cases in which the mother was accused of child neglect for "engaging in domestic violence," he found after trial that she had not been the offender at all. (T. 130)

Although Ms. Chahine was aware that non-offending battered mothers were being held accountable for the violence of others, contrary to the Domestic Violence Guiding Principles, she never took any steps to meet with the division of legal services regarding the practice and was not aware of any other person who did so. (T. 1746) Ms. Roberts likewise was aware that non-offending battered mothers were being held accountable for the violence of others by being accused of "engaging in domestic violence," but she was unable to articulate any plan for the cessation of the use of that allegation. (T. 1861)

Deputy Commissioner Bell testified that in a situation where a mother is simply a victim of domestic violence, the ACS policy is that "she should not be listed as a respondent for engaging in domestic violence." (T. 2344) However, domestic violence advocates have long objected to the ACS practice prosecution of non-offending battered mothers, and have raised the issue with ACS without success. (E.g., T. 1744) It was not until August 14, 2001, a few days prior to Commissioner Scoppetta s testimony, and as a direct result of this litigation, that ACS instructed its staff to cease charging non-offending battered mothers with "engaging in domestic violence." (Ex. MMM)

Deputy Commissioner Bell also testified that the directive was effective immediately (T. 2342) and that the memorandum would be distributed through the agency s mass distribution process, as well as including the memorandum in employees paycheck envelope. (T. 2341) He thought that it sounded "reasonable" for ACS to consider the amending or withdrawing of pending petitions which inappropriately charge battered mothers. (T. 2342-43)

Commissioner Scoppetta testified, dismissively, that issuing the Memorandum (Ex. MMM) was a "very simple thing to do." (T. 2585) However, Deputy Commisisoner Bell acknowledged that "the issue of having people to [sic] internalize and to incorporate any change into their psyche or daily practice is something that is a much longer practice." (T. 2359) It remains to be seen whether ACS intends to cease prosecuting battered mothers for child neglect, a practice and policy which it now admits is wrong.

Defendant Nat Williams, who is responsible for removal decisions in approximately two dozen new cases each week, testified that common ACS practice in domestic violence cases is to wait a few days after removing a child before seeking a court order. (T. 852) According to CPM Williams, in the days after removal ACS may try to "work thing out" with the battered mothers, thereby avoiding court entirely. (T. 852) He testified that "usually" battered mothers will agree to services if their children are removed from them without court order. (T. 852) He testified that sometimes ACS removes children in domestic violence cases without ever going to court. (T. 853) Although workers should try to go to court within one business day after removing a child, Williams has been trained that he can wait several days before seeking court orders. (T. 853-54)

CPM Stewart testified that when ACS removes children from parents, whether ACS must seek court orders "depend[s] on the situation" and the court order would "come later." (T. 452) He removes children from their parents even when he does not have "enough information to go into court." (T. 455) He testified that if the children's safety is at risk, the children are removed, and the matter is then brought to the ACS legal department to determine whether the removal is legally sustainable, and whether a petition will be filed. (T. 453)

In the case of April Rodriguez, ACS removed the children even though they were not at imminent risk. (T. 505) Even after the Family Court ordered the children to be returned to their mother, CPM Stewart instructed his caseworkers not to release the children (T. 467), despite the court s order. (Ex. 173) Instead, he told his caseworkers to "reassess" the situation and decide whether to release the children. (T. 467)

CPM Williams directed the filing of a petition against Ms. Nicholson alleging that she was neglectful, even though he did not believe that Ms. Nicholson was neglectful. (T. 868) CPM Stewart maintained a neglect petition against Ms. Rodriguez, although he did not believe that she was neglectful. (T. 461) CPM Lowell ordered the filing of a neglect petition against Ms. Garcia, based merely on what she perceived to be Ms. Garcia s failure to cooperate with ACS. (T. 1352-55) An ACS supervisor admitted to Michelle Norris that Ms. Norris behavior did not amount to neglect (T. 1203), but took no action to reverse the erroneous prosecution. Those four supervisors who have admitted to unconstitutional practices are themselves responsible for hundreds of removal decisions each year.

Preventive services are intended to prevent removal of children from their parents, placement in foster care, and future abuse or maltreatment of children. (T. 2225) ACS contracts with the private, not-for-profit agencies to provide preventive services such as individual counseling, family counseling, parenting skills classes, and homemaker services. (T. 2259, 2354) The provision of preventive services is a requirement of both state and federal law. 42 U.S.C. Sec.671(a)(15); N.Y. Soc. Serv. L. Sec.409, 409-a.

The Domestic Violence Guiding Principles seem to indicate that preventive services are optional in domestic violence cases, preferred, but only offered "when appropriate." (Ex. 21) Commissioner Scoppetta testified that whether a family will be offered preventive services "will depend on the assessment that the caseworker and the supervisor makes." (T. 2563) Indeed, in the cases of the plaintiff class members, the caseworker and supervisor almost uniformly failed to offer preventive services to avoid placement, in violation of best practices and law. See "Plaintiff Class Members," infra.

According to plaintiffs expert Laura Fernandez, a former child protective worker and domestic violence counselor, non-offending battered mothers are frequently required to comply with various services as a condition of preventing removal of their children, because they are viewed as the less frightening and more compliant of the two parents. (Ex. 137 at 2) In the 71 sample ACS cases which Ms. Fernandez reviewed, she repeatedly observed the unequal involvement of the battered mother in services.

ACS frequently requires battered mothers to engage in a laundry list of "services," without a real assessment of whether the services are necessary. For example, Michelle Norris was required to attend counseling and parenting classes and to obtain an apartment and a job before her child could be returned to her. (T. 1198-99, 1203-04) ACS seems to view obtaining services not as a means of enhancing child safety, but rather as a measurement of the battered mother s willingness to cooperate with ACS s demands.

ACS supervising attorney Savarese testified that before making allegations against the mother, ACS determines whether she sought an order of protection, whether she was willing to relocate, whether she was willing to exclude the batterer, and whether she was willing to go to domestic violence counseling. (T. 347) The focus of the legal division in filing petitions clearly is the perceived compliance of the battered mother; Mr. Savarese never mentioned the important factor of whether there is any indication that children have suffered harm from witnessing the domestic violence, which would be the more appropriate indicator of possible child neglect.

Ms. Chahine testified that caseworkers are required to consider the harm of separation when making a removal decision, but that that instruction is not written down explicitly B rather, it is included in the agency s trauma reduction guidelines. (T. 1781-82) But those guidelines instruct caseworkers to presuppose placement, rather than to weigh the harm of separation. (Ex. CCC at App. G, T. 2356-58) Not a single child protective manager or case file of any class member brought before this Court indicates that ACS assessed whether removal would create a higher risk of emotional harm to the child than the risk of witnessing domestic violence.

ACS employs family team conferencing at various decision-making points in the family s involvement with ACS. (T. 1696-97, 2239-43, 2504-05) There are different types of conferences, such as "Elevated Risk Conferences," which are intended to occur when removal is contemplated; "72-Hour Conferences," which are intended to occur after a child has been removed; and "30-day Conferences," which are intended to occur after the case has been open for a month. (T. 2318) The conferences are facilitated by an ACS employee with the title "child evaluation specialist" (T. 2241-42) and may include the ACS caseworker and supervisor, the preventive or foster care workers, the parents, relatives, and foster parents. (Ex. U) ACS uses family conferences purportedly to create safety plans and service plans for families (T. 1697) and, where children have been removed, to identify what the parents must do to secure the return of the children. (T. 2246-47)

A parent s statements at a family conference may be reported to the district attorney. (T. 1705) If the parent reveals any information during a family conference which is believed to constitute child abuse or neglect in addition to that which caused ACS to become involved with the family, that information will be used against the parent. (T. 1705, Ex. U, p. 11) Although Deputy Commissioner Bell claimed that information obtained at the family conference will not be used in the ACS prosecution of the parent in Family Court (T. 2247, 2326), he admitted that the caseworker is mandated to record in the case file the "valuable information" accumulated at the family conference, including the parents admissions, and that the case file may be placed into evidence by ACS in the Family Court proceeding. (T. 2325-26; see also, Ex. 77, p. B00278) Despite repeated questioning, Ms. Chahine refused to answer directly the question of whether a caseworker would use a battered mother s statement in a family conference against her in a subsequent prosecution for child neglect. (T. 1763-64)

If a parent agrees with ACS s service plan, ACS will submit the plan to the Family Court. (T. 1705, 1756, 2247) It does not appear that ACS advises the parent that if she disagrees with the plan, the case worker is obligated to report that refusal to the Family Court. (T. 1759, contra Ex. U) Any ACS employee who objects to the decision made at the conference has the right to appeal, but the parent does not. (Ex. V, p. 16)

Parents are never permitted to bring their attorneys to family conferences (T. 1701), even though the conferences are used to determine whether or under what conditions ACS will return the children to the mothers. Deputy Commissioner Bell testified that a parent would not even be permitted to have an attorney wait outside of the conference room, for consultation. (T. 2321-22)

As part of their justification for not allowing mothers to have attorneys at 72-hour conferences, defendants cite the approval of the conference idea by the Casey Foundation, and introduced a pamphlet issued by Casey. (Ex. LLL) However, defendants only introduced a portion of the pamphlet. The full pamphlet (Exhibit 255) states that attorneys may be present, but advises against having child protective services attorneys present.

At the time that ACS launched the model, then-domestic violence coordinator Susan Urban strongly opined that parents had a right to legal representation at these conferences. However, she testified, Deputy Commissioner William Bell opposed the inclusion of attorneys at the conference, and he stated publicly that one goal of the conferences was to obtain admissions of child abuse or neglect from the parents, so that the matter could proceed to disposition in Family Court, without the necessity for a fact-finding trial. (T. 1515)

Deputy Commissioner Bell testified that a service plan is supposed to be shared with the parents attorneys after the parent has agreed to it (T. 2247); however, Ms. Chahine could not assure the Court that mothers 18-B attorneys receive copies of the documents that are produced at the family conference. Ms. Chahine testified, without specificity, "we are continuing to work to make sure that the information flows. There is still work to be done to make sure that it does work the way it is supposed to." (T. 1702)

When ACS began holding family conferences, Susan Urban noted that ACS had apparently not considered how domestic violence victims might be affected by the process. She made numerous recommendations (T. 1514), one of which was adopted: in domestic violence cases, that the victim and the batterer should not attend the conference at the same time. (T. 1514, 1698-99, 1762) However, even in domestic violence cases, caseworkers are required to write down the events of the conference, including the mothers statements, and place those statements in the ACS case record. (Ex. V, p. 15, Appendix M.) That case record is available to the batterer. N.Y. Soc. Serv. L. Sec.422(7)

Although Ms. Urban conducted some domestic violence training for child evaluation specialists when the model was first adopted (T. 1700), it was "far from enough." (T. 1521) There is no evidence that ACS has provided any domestic violence training to child evaluation specialists since Ms. Urban left ACS in June, 2000. (T. 1483)

M. Domestic Violence Shelters

The City of New York is required by state law to provide shelter space for domestic violence victims who need shelter. While state law does not specify any minimum number of shelter spaces, the amount of space that New York City provides is wholly inadequate to satisfy the need. As a result, some domestic violence victims have no shelter, and ACS takes or keeps their children.

CPM James Stewart testified that ACS may require a mother to enter the shelter system before the children will be paroled to her. (T. 465) Ms. Roberts said that some removals of children could be avoided if the mother and children could find places in domestic violence shelters. (T. 1862) However, there are not enough beds in New York City for all victims of domestic violence when they seek shelter. (T. 1862) ACS sometimes insists that battered mothers go to shelters as a condition of keeping or regaining custody of their children (T. 1868), but has no way of facilitating the mothers entry into shelter except to give them the telephone number for the shelter hotline. (T. 110)

When class member April Rodriguez called the domestic violence hotline, she was told that she would have to quit her job in order to get into a domestic violence shelter. (T 387) After the Family Court judge released her children to her, ACS would not return the children until she had secured a place in a shelter, even though the judge s order said nothing about her having to go into a shelter in order to get the children back. (T. 405) She herself found a shelter that had places for a mother and three children (T. 406), but lost the places to another mother, because system rules require that all members of the family be ready to enter the shelter at the same time, while her children were not ready because they were still in foster care. (T. 406) ACS wanted a letter from the shelter stating they had a place for the mother and children, but the shelter system does not supply such letters. (T. 406) When she finally got the children back, she went to the City s Emergency Assistance Unit ("EAU") to wait for an opening in a shelter for victims of domestic violence. (T. 411) For seven nights, she and the three children traveled from temporary overnight shelters for homeless people back to the EAU for the days, because no long-term shelter space was available (T. 413) The shelters locations were not confidential. (T. 414) After a week of moving back and forth, the EAU found her space, a single room with bathroom, sink, hot plate and small refrigerator. That location was also not confidential, and there were no services on site for domestic violence victims and their children. (T. 414) The family stayed in that facility from October until February. (T. 415) They were then moved to a different shelter, again, not a domestic violence shelter, with a non-confidential location. (T. 416)

Deirdre O Sullivan, Counsel in the Public Advocate s Office and co-author of the reports Justice Denied (Ex. 123) and Children Still at Risk (Ex. 122), testified that anyone who is a victim of domestic violence can go to a domestic violence shelter, regardless of income. (T. 946) However, while people who reside in domestic violence shelters are permitted to work, working presents problems when the abuser knows the victim s work address: he may follow her from work to the shelter. The victim can be asked not to work when the abuser knows the location of her job. (T. 946) Shelters have curfews that can also interfere with a resident s ability to keep her job. (T. 497) There are not enough beds for all the victims of domestic violence who seek to go into the shelters specifically designed to serve them. (T. 948)

The domestic violence hotline receives about seventy-two hundred calls from persons who are really in need of shelter, out of a total of approximately 13,800 calls requesting shelter, i.e., victims who have no other way to be safe. (T. 948) New York City currently has about 1,400 emergency beds and between 87 and 140 transitional units (T. 948). The domestic violence shelter system can thus only serve around 400 women and 900 children at any given time. (T. 948) That leaves about 6,600 families in need, with no means to escape abuse. (T. 954)

Alisa Del Tufo likewise testified to the insufficient number of beds in domestic violence shelters (T. 1170), a lack which sends many domestic violence victims into shelters for the general population. (T. 1170) Ms. Meyers testified that there are an average of approximately ten domestic shelter spaces daily for every thirty women who request places in the shelter system. (T. 1252) Despite the enormity of the shelter problem, Commissioner Scoppetta has done nothing to increase the amount of domestic violence shelter space. (T. 2586)

When Susan Urban began overseeing the domestic violence program at HRA in 1988 (T. 1485), there were 390 shelter spaces available for domestic violence victims, serving about 110 families at any one time. (T. 1485) She advocated continually for additional beds and, when she left HRA in 1996, there were around 1,100 beds. (T. 1485-86) That number has increased only a little in the past five years.

Alicia O Hare, who testified for infant plaintiff class, said that one of the biggest barriers to the safety of battered women was the shortage of domestic violence shelter beds. (T. 2653) Some women must wait weeks to get into a shelter. (T. 2653) There is a "tremendous need for" additional shelter beds; the current number is insufficient. (T. 2670)

Bea Hanson, Vice President for Domestic Violence Programs at Safe Horizon, is in charge of the hotline for domestic violence victims which Safe Horizon operates, under contract with the City of New York. (Subclass B Ex. 22, p. 7) Safe Horizon keeps statistics of domestic violence shelter requests, which include the monthly number of shelter spaces available, and the monthly number of requests for shelter. (Subclass B Ex. 22, pp.13-20) For several years, the number of unduplicated requests for shelter has far exceeded the availability of shelter spaces. (Subclass B Ex. 14) For example, in the year ending June 2001, on average, 40.4 different people requested shelter space, while, on average, only 14.8 places were available. (Subclass B. Ex. 14, Subclass B. Ex. 22, p. 21) In fiscal year ending June 2000, the average daily request was 32.5 while availability was 13.5 beds. For 1999, the average daily request was 31.2 and availability was 9.7 beds. For 1998, the average daily request was 38.2 and the availability was 10.6. (Subclass B Ex. 14)

Safe Horizon does not maintain a waiting list. Nor does it keep data on the average number of times a woman must call before she find space in a domestic violence shelter. (Subclass B Ex. 22, p. 47) When no shelter space is available, Safe Horizon refers callers to the EAU (Subclass B Ex. 22, p. 47) Some women are denied space in domestic violence shelters because their families are too big: Safe Horizon s shelters take families with up to three children. (Subclass B Ex. 22, p. 33)

The locations of EAU shelters are not confidential. (Subclass B Ex. 22, p. 22) Ms. Hanson knows of about five incidents in the last two years where batterers followed victims to the EAU, and of one instance where a batterer engaged in a menacing act in the EAU. (Subclass B Ex. 22, p. 29)

EAU shelters do not provide specific domestic violence services. (Subclass B Ex. 22, p. 22) They lack security, support groups, advocacy with other agencies, help in obtaining police reports and orders of protection and referrals to permanent safe housing (Subclass B Ex. 22, p. 28-29), services important to the recovery from victimization. (Subclass B Ex. 22, p. 57-58)

Battered women sometimes turn down space in EAU facilities when no beds are available in domestic violence shelters. Ms. Hanson believes that lack of services is one factor, but the primarily reason they reject EAU placements is the lack of safety. (Subclass B Ex. 22, p.59)

Safe Horizon provides shelter space to domestic violence victims whose children are in foster care only if ACS agrees to return the children when the mother gets shelter. (Subclass B Ex. 22, p. 50)

Domestic violence victims may remain in emergency shelters for only 90 days, although they may get a 45-day extension if necessary. They can then move to the transitional shelter system, which has a six-month maximum stay. (Subclass B Ex. 22, p. 35). That limit can also be extended, but not indefinitely. (Subclass B Ex. 22, p. 36) When the time expires, the family is discharged and may not go to another shelter for domestic violence victims. They may have to go to EAU. (Subclass B Ex. 22, p. 36)

The City has contracted with Safe Horizon for approximately 250 more domestic violence shelter spaces, to be added by the end of 2001. (Subclass B Ex. 22, p. 49) The testimony and evidence in this case is a strong indicator that that increase will be insufficient to meet the needs of battered mothers and their children.

N. ACS Response to Battered Mothers' Claims

City defendants concluded with the testimony of Commissioner Nicholas Scoppetta. Much of his testimony was a recitation of his accomplishments in areas other than domestic violence. (E.g., 2419-2522) However, the Public Advocate s Office concluded that "[d]espite ACS s progress over the last five years, many serious problems remain." (Ex. 122, p. 2)

Commissioner Scoppetta's concentration on systems over people is noted in the Marisol Panel's Final Report, which ACS itself cited in its support:

Second, it would be a very serious misreading of our Final Report if these conclusions regarding good faith were read as a judgment that this system has been fixed. In our view, ACS has made remarkable progress in many areas that must be changed if children and families are to have a better experience. The reforms already implemented were necessary, but they are not yet sufficient, to produce that better experience. (Ex. N, p. 3 of introduction)

Unfortunately, the Commissioner appears to be unable or unwilling to see the serious problems. All of his accomplishments relate to systems. When it comes to individuals, he is blind.

Commissioner Scoppetta s testimony was symptomatic of ACS s position and ACS s problem. Neither he nor anyone from ACS s central administration has examined the cases of the battered mothers as recounted in the complaints, the class certification motion, the testimony at trial, the news media or in prior complaints. (T. 2579-80) The Commissioner thought that some staff were looking at some cases, but did not know who they were. He thought it was the legal staff, and did not know if any social workers were involved. (T. 2578-82)

The Commissioner continued to deny the existence of the problem that was obvious to anyone who had heard the testimony in this Court. Indeed, the Commissioner was not aware of the court testimony (e.g., T. 2579) and, apparently, no one on his staff or his legal team told him about the serious flaws in the OCFS Study upon which he relied. (T. 2568-71) City defendants counsel joined in minimizing the extent of the problem, stating to the Commissioner in direct examination that "plaintiffs have introduced evidence pertaining to some five or six cases in which they allege errors were made" (T. 2543), when in fact there was testimony and evidence related to three times that number of cases, as well as the many unidentified cases referred to anecdotally in exhibits and by witnesses.

The Commissioner seemed to feel that if he refused to look at the cases of unnecessary removals, and instead rely upon a one-sided state study, he could continue to deny the existence of the problem. Without reviewing the cases in which ACS removed children unnecessarily, ACS has no way to determine the reasons for its mistakes or how to correct its practices; the failure to review the cases establishes that ACS had no interest in identifying or correcting its unlawful practices.

At the beginning of this case, City defendants claimed that no problem exists because ACS never removes children solely or primarily because their mothers are victims of domestic violence. As evidence to the contrary mounted, City defendants changed position, claiming that such removals are justified. By the conclusion of the case, City defendants claimed that they has fixed the problem. (E.g., Ex. PP, QQ, CCC, MMM)

The evidence showed two worlds: best practices cited by experts on both sides, with lofty sentiments and pronouncements by ACS central administration, contrasted with ill-informed, coercive practices by front line staff. City defendants expert, Dr. Richard Gelles, was right when he testified about a "disconnect" between ACS administration and the front-line workers and supervisors. (T. 2407) Despite many troubling statements, some ACS administrators and domestic violence specialists understand domestic violence issues. However, that understanding is totally lacking in the CPMs who testified, and in the work of the caseworkers and supervisors described by witnesses and documented in the exhibits.

Prof. Randy Magen has, ACS s training consultant, described City defendants perfectly, when he concluded that in custody cases involving domestic violence, the focus is on the batterer, while in neglect cases involving domestic violence, the focus is on the victim. Questioning the mother s reasons for not leaving the batterer focuses the case on the mother and assumes that leaving is the mother s responsibility, a risk-free solution to the violence, and a viable option in all cases. In fact, insisting that the mother leave the batterer merely substitutes an unknown danger for a known danger. Magen, AIn the Best Interests of Battered Women: Reconceptualizing Allegations of Failure to Protect," 4 Child Maltreatment 127 (1999) (Ex. 176) Dr. Magen urges that child protective agencies abandon the approach of charging a mother with "failure to protect" her children from circumstances which are very likely beyond her control; rather, he suggests a new focus in child welfare cases in which the problem is defined not as what the mother failed to do, but rather in terms of the what the father did. (Ex. 176, p. 129)

While Dr. Magen writes from a social work perspective, plaintiffs suggest that the United States Constitution mandates such a focus. Defendants are unwilling to adopt such a focus voluntarily. Therefore, this Court must order them to do so.

O. Plaintiff Class Members

At trial, witnesses and evidence established that the problem of unlawful removal of children from battered mothers was prevalent, and of great concern to battered mothers and advocates. Testimony and evidence told the stories of 15 individual class members, along with others contained in the various reports and news reports, as examples of ACS s improper and unlawful practices in cases involving domestic violence. City defendants did not present a single expert witness who had reviewed the case files to determine whether ACS staff used proper practice in the cases of plaintiff class members.

1. Sharwline Nicholson

Named plaintiff Sharwline Nicholson has two children, Kendall, born February 9, 1993, and Destinee, born March 21, 1998. (Ex. 4a, 4b) Ms. Nicholson is a full-time college student, and is employed at Home Depot. (T. 724)

Destinee s father never lived with the family, although he visited his daughter on a bi-monthly basis. (T. 726) On January 27, 1999, while Kendell was at school and Destinee was asleep in the bedroom, Ms. Nicholson was unexpectedly attacked by Destinee s father. (T. 727-28) He had not previously assaulted her. (T. 727) Immediately after the attack, the batterer fled and Ms. Nicholson dialed 911. (T. 728) The police and ambulance arrived. Before she was taken to the hospital, Ms. Nicholson arranged for Anita, her neighbor and regular baby-sitter, to pick up Kendell at school and to care for Destinee. (T. 728-29)

Later that night, police officers came to the hospital and asked Ms. Nicholson for names of family members who could care for the children. (T. 730-32) The police officers said that Anita could not care for the children, because she was not a family member. (T. 730-31) Ms. Nicholson suggested several family members including her cousin, Michelle Brown, who came that night from New Jersey to pick up the children. (T. 731) The police refused to release the children to Michelle Brown because she lived in New Jersey. (T. 855-56)

The following morning, ACS took the children into custody. (T. 733) ACS did not file a petition in Family Court until February 2, 1999, at which time they charged both Ms. Nicholson and Destinee s father with child neglect. Child Protective Manager Nat Williams directed the filing of the petition against Ms. Nicholson, even though he did not believe that she was neglectful. (T. 868) ACS charged both the victim and the perpetrator, with "engag[ing] in acts of domestic violence in the presence of... Destinee." (Ex. 4a, 4b) ACS also charged Destinee s father with using excessive corporal punishment on Kendell in October, 1998, and allegation which ACS had previously marked "unsubstantiated" as to Ms. Nicholson. (T. 763, Ex. 190) CPM Williams testified that ACS instructed Ms. Nicholson to obtain an order of protection from the police precinct; he found it suspicious that she claimed that she had been unable to do so. (T. 870-71)

ACS detained Destinee and Kendell until February 18, 1999. During that period, ACS did not send Kendell to school. (T. 749) As a condition of having returning the children, ACS ordered Ms. Nicholson to seek an order of protection against Destinee s father and to relocate. (T. 744, 870) Ms. Nicholson went to live with a relative in the Bronx. (T. 744) In March, 1999, when Ms. Nicholson missed a meeting because of freak snowstorm, ACS had Ms. Nicholson arrested. (T. 882, Ex. 188) Subsequently, Ms. Nicholson and her children were permitted by ACS to return to their home, where they remain to this day without incident. (T. 725, 757) ACS pursued Family Court proceedings against Ms. Nicholson for six more months, during which time they conducted random searches of her home. (T. 758) The proceedings were ultimately dismissed against Ms. Nicholson. (T. 757)

2. Ekaete Udoh

Named plaintiff Ekaete Udoh is the mother of five girls, including infant plaintiffs Edu, Ima, Nsikak and Asuno. (T. 957, Ex. 192) Two daughters currently attend college. (T. 959) Ms. Udoh has been employed with the Board of Education as a teacher s assistant for eight years, working with special education students. (T. 958)

Ms. Udoh was 19 years old when she wed Eddy Udoh in Nigeria through an arranged marriage. (T. 959-60) From the start of the marriage, Mr. Udoh routinely beat his wife. (T. 970) One assault caused Ms. Udoh to give birth to prematurely (T. 969-70); on other occasions she suffered bruises and cuts. (T. 971)

Ms. Udoh repeatedly sought help from the police (T. 974-75, 977, 990) and from the Family and Criminal Courts. (T. 977, 985) Between 1995 and 1999, Ms. Udoh went to court on more than 20 occasions to seek protection from her husband s abuse. (T. 980) She also made repeated criminal complaints against her husband and always cooperated with his prosecution. (T. 976, 998)

The law enforcement and judicial systems did not protect Ms. Udoh and her children. When Ms. Udoh went to court, judges told Mr. Udoh not to hit her, and issued numerous orders of protection. (T. 978, 981) However, no judge ever ordered Mr. Udoh to leave the home (T. 1002-03) Instead, the Family Court judges asked ACS to investigate the family. (Ex. 85, 86, 112) Ms. Udoh begged ACS employees for help, complaining of her husband s violence (T. 982, 987, 992), but ACS did nothing. (T. 984) ACS dismissed Mr. Udoh s assaults as "domestic strife and fighting in the household," noting that Mr. Udoh was angry because he could not take a second wife, which he claimed was legal in his native Nigeria. (Ex. 112)

On May 4, 1999, while Ms. Udoh was asleep, Mr. Udoh hit their daughter Asuno because he did not like the way that she washed the dishes. (T. 960-61, 965) Ms. Udoh was awakened by her daughter s crying and immediately went to comfort her and to tend to the injury on her eye. (T. 960-61) The next day, May 5, 1999, Asuno s school and her doctor called the State Central Register to report that Mr. Udoh had mistreated his daughter. (T. 962) No injury to the eye was visible either to Asuno s private doctor or to the ACS doctor. (Ex. 81)

Later that same day, two ACS caseworkers went to the Udoh home. (T. 963-64) Mr. Udoh agreed to leave the home and started packing his belongings. He was gone when Ms. Udoh returned with her daughters from filing a police complaint at the precinct. (T. 964-65) ACS instructed Ms. Udoh to appear in court the following day, May 6, 1999.

On May 6, 1999, ACS told Ms. Udoh not to go to court. ACS removed the children from their schools and took them into custody (T. 967), even though ACS was aware that Mr. Udoh had left the home. (T. 1010) Violating its own protocol, ACS did not interview the children prior to removal. (T. 1106-07) The sisters were transferred from one ACS office to another, without being able to speak to their mother. (T. 896) They didn t eat all day. (T. 896)

CPM Delamothe testified that the reason that the Udoh children were deemed at risk was because the parents "might be in court at the return of the children from school and they wouldn t have parents to come home to," and ACS "didn t know if [they] had keys." (T. 1026-27) Although ACS "was aware of the fact that there were many orders of protections, court interventions that mother had requested from Family Court concerning the domestic violence in the home," (T. 1042) ACS charged Ekaete Udoh with "engag[ing] in domestic violence in the presence of the subject children," falsely alleging that she failed to obtain an order of protection against her husband. (Ex. 160a) ACS detained the children until May 28, 1999, eight days after a family court judge had ordered them returned to their mother. (T. 997-98, Ex. 195, Ex. 196.)

Due to the long commute from the foster home, the children had trouble getting to school on time. (T. 898-99) Edu, who was preparing for her Regents exams, was unable to study because she was prohibited from going home to get her review materials. (T. 898) The sisters were routinely locked out of the foster home, sometimes intentionally. (T. 900-01) Other times, they were locked inside the house. (T. 900) The foster mother locked the phone every time she left the house. (T. 900)

After releasing the children from foster care on May 28, 1999, ACS continued to prosecute Ms. Udoh in the Family Court until April, 2000 (Ex. 198)

3. Sharlene Tillett

Named plaintiff Sharlene Tillett is the mother of Uganda, born August 21, 1999, and Winston, born January 1, 1991 (Ex. 77, T. 1057) Prior to giving birth to Uganda, Ms. Tillett told a hospital social worker that she had been choked by the child s father a few days earlier. (T. 1057-58) She had repeatedly been a victim of domestic violence during the end of her pregnancy, and had sent Winston to live with relatives in California to protect him from seeing it. (Ex. 77, p. B00372) Ms. Tillett planned to move to California after giving birth and produced a non-refundable ticket to California evidencing that safety plan. (Ex. 77, p. B0070, B00377)

On August 23, 1999, the baby s father arrived at the hospital unexpectedly to take Ms. Tillett home. (Ex. 77, p. B00369) Ms. Tillett accepted a ride from the baby s father because she did not want to cause a commotion at the hospital. (Ex. 77, p. B00372-73) Ms. Tillett was not living with him at the time, and he did not enter her home after dropping her off. (Id.)

The hospital social worker called the State Central Register (Ex. 77, p. B00369, T. 1060) and on August 24, 1999, an ACS caseworker visited Ms. Tillett s home. (Ex. 77, p. B00370) The caseworker noted that Ms. Tillett appeared physically and mentally capable of caring for her newborn. (Ex. 77, p. B00372-73) The child was healthy, clean and neat. (Ex. 77, p. B00371) Ms. Tillett s home was furnished with a full size mattress, and she had sufficient pampers and clothing. (Ex. 77, p. B00370)

Nevertheless, CPM Delamothe instructed the caseworker to go to Ms. Tillet s home with the police and to remove newborn Uganda from her. (Ex. 77, p. B00370) The removal was made without a court order and without offering Ms. Tillett any services. (T. 1064-68, 1082) CPM Delamothe testified that in order to remove a child, she needed only a "suspicion." (T. 1083)

The following day, ACS filed a neglect petition against Ms. Tillett, claiming that she was neglectful, along with the baby s father, because she "engage[s] in acts of domestic violence in the presence of the subject child." (Ex. 161) The child was not born at the time of the domestic violence and thus did not witness anything. (T. 1062) ACS also charged Ms. Tillett with child neglect because she did not have a crib or "means for supporting or caring for" the baby. (Ex. 161) CPM Delamothe admitted that Ms. Tillett s sharing of her bed with her child was not neglectful. (T. 1078)

As a condition of regaining custody of her newborn baby, ACS ordered Ms. Tillett to attend domestic violence classes, parenting skills classes, and counseling. (Ex. 77, p. B00376) ACS also attempted to require Ms. Tillett undergo a psychiatric evaluation; when her attorney objected, ACS told Ms. Tillett that she should "do what she thinks is best" but that her cooperation would expedite the return of her son. (Ex. 77, p. B00379) The record does not indicate any attempt by ACS to help Ms. Tillett develop a safety plan. While Uganda was in foster care and ACS was prosecuting Ms. Tillett for child neglect, ACS required Ms. Tillett to attend a conference to "assess Ms. Tillett s family history." Ms. Tillett brought her attorney to the conference, but ACS refused to permit the attorney to attend. (T. 1087)

On September 3, 1999, the Family Court ordered that Uganda could return to Ms. Tillett if her home was inspected. (T. 1083-84) The ACS caseworker visited Ms. Tillett s home, but refused to return the child because Ms. Tillett might be working too many hours to breast feed him and provide him with quality care (T. 1084-86) ACS did not release the child to Ms. Tillett until October 20, 1999, and thereafter continued to prosecute her for child neglect. (T. 1087)

4. Shqipe Berisha

Class member Shqipe Berisha is the mother of Ismael, born October 22, 1999. (Ex. 88) On January 1, 2001, Ismael s father grabbed her and dragged her by her hair across the apartment while she held her son. (Ex. 88) The police arrested Ms. Berisha along with her batterer (Ex. 229) and took custody of Ismael without a court order. (T. 1358) Within hours, the District Attorney declined to prosecute Ms. Berisha (Ex. 229), and she was released. Nevertheless, on January 2, 2001, ACS took Ismael into custody. (T. 1358)

On January 4, 2001, at the direction of CPM Bonnie Lowell (T. 1358), ACS filed a petition alleging that the parents had both been arrested for "endangering the welfare of their child." (Ex. 88) ACS also claimed, incorrectly, that Ms. Berisha had been charged with assault in the third degree. (T. 1362, Ex. 88, Ex. 229) Even after the District Attorney confirmed that the charges against Ms. Berisha had been dropped, ACS did not amend the petition against Ms. Berisha to correct the misstatement. (T. 1363)

The neglect petition also alleged that Ms. Berisha "misused" drugs "including, but not limited to Valium." (Ex. 228a, Ex. 88) The only "misuse" that ACS alleged was that Ms. Berisha had taken Valium without a prescription on one occasion six months earlier. (T. 1360-61) CPM Lowell admitted that, by itself, that "misuse" would not constitute neglect. (T. 1361)

Ms. Berisha s child was subsequently returned to her. (T. 1363-64) To date, ACS continues the prosecution of Ms. Berisha in Family Court for child neglect. (T. 1364)

5. April Rodriguez

Class member April Rodriguez has two children, Elijah, born March 6, 1998, and Kayla, born September 17, 1999, and is the custodian of her children s half-sister Jasmine, born March 20, 1994. (Ex. 91a, 91b, 91c, T. 379-80) Prior to her involvement with ACS, Ms. Rodriguez was employed. (T. 417).

On August 29, 2000, the children s father assaulted Ms. Rodriguez during an argument. (T. 382-83) He had never been abusive to the children (T. 486) Ms. Rodriguez reported the assault to the police, who arrested the batterer the following day. (T. 384-85) Ms. Rodriguez fled the family s Bronx apartment with her children, going first to stay with her aunt and then with her grandmother. (T. 386-87)

A week or two after the assault, an ACS caseworker visited Ms. Rodriguez and her children. (T. 387-88) The caseworker told Ms. Rodriguez that ACS was not investigating her, but that ACS needed to examine the children because ACS had filed a petition against their father. (T. 388) The caseworker told Ms. Rodriguez that ACS considered it acceptable for her to live with her grandmother while she saved money for an apartment. (T. 389)

Following that meeting, Ms. Rodriguez began receiving telephone calls at work from various ACS staff. (T. 389-90) Subsequently, ACS arranged a meeting to discuss the case with Ms. Rodriguez, at the Bronx apartment from which she had fled. (T. 390)

On October 10, 2000, an ACS caseworker and supervisor called Ms. Rodriguez at work and ordered her to come to their office, where they accused her of violating an order of protection against her batterer. (T. 390-91) There was no such order. (T. 391) Despite the alleged existence of an order of protection, ACS scheduled a joint meeting with Ms. Rodriguez and her batterer for October 11, 2000. (T. 392)

At the meeting, an ACS supervisor coerced Ms. Rodriguez into signing over custody of the children to their father (T. 392-94, Ex. 92), by threatening to place the children in foster care if she did not sign. (T. 394) At that time, Ms. Rodriguez had neither gone to court nor been appointed an attorney. (T. 474) After the meeting, with ACS consent and encouragement, the batterer took the children. (T. 393-94) Ms. Rodriguez left the meeting and immediately called ACS s main office to report the turn of events. (T. 397-98)

On October 12, 2000, without a court order, ACS moved the children to the home of their paternal aunt. (T. 399, 454) CPM Stewart testified that ACS did not seek a court order on October 12, 2000, because he became aware of the situation late in the day (T. 454); and that ACS did not seek a court order on October 13, 2000, because he "didn t have enough information to go into court, but [he] did have enough to put the children into some type of secure environment outside of the father s home." (T. 455) After removing the children, Mr. Stewart did not know if he had a legal basis for filing a petition against either parent. (T. 451) Upon learning that ACS did not have a court order to remove her children, Ms. Rodriguez retrieved them and brought them back to her grandmother s. (T. 400-01)

On October 16, 2000, two ACS caseworkers, accompanied by police officers, removed the children (T. 401) and placed them in foster care. ACS then filed neglect petitions. (Ex. 182a, 182b, 182c) ACS charged Ms. Rodriguez with child neglect on the grounds that she and her batterer "engage in serious domestic violence in the home and in front of the subject children." (Ex. 91a, 91b, 91c) Again, ACS did not differentiate between the assailant and his victim. (Ex. 91a, 91b, 91c) CPM Stewart testified that ACS actually filed neglect charges against Ms. Rodriguez because she did not have adequate child care. (T. 501)

Several days after the children s removal, the Family Court ordered them paroled to their mother s care. (Ex. 173) Despite the court order, ACS decided not to return the children to Ms. Rodriguez because she lacked "adequate child careYand the living arrangement would be too cramped and crowded." (T. 464) ACS required Ms. Rodriguez to go with her children to the Emergency Assistance Unit, the city s entry into the homeless shelter system, as a condition of the children s return to Ms. Rodriguez. (T. 410) For one week after the children were returned, they and Ms. Rodriguez made nightly trips from the EAU to a homeless shelter. (T. 413) Jasmine did not attend school during that week, nor had she attended school while in foster care. (T. 414) Ms. Rodriguez was forced to stop working and resort to public assistance as a result of her stay in the homeless shelter system. (T. 417) ACS continued to prosecute Ms. Rodriguez for child neglect until August 22, 2001, when the petition against her was finally withdrawn.

6. Donna Darbasie

Class member Donna Darbasie is the mother of three children, Wyleed, born October 12, 1997, Christopher, born January 26, 1999, and Gabrielle, born June 23, 2000. (Ex. 231) On April 23, 2001, Ms. Darbasie s husband assaulted and choked her. (Ex. 232) While gasping for breath and struggling to break free, Ms. Darbasie bit her husband. On or about May 18, 2001, CPM Bonnie Lowell made the decision to remove Ms. Darabasie s children because of that incident. (T. 1390) Although she knew that a bite is often a defensive wound (T. 1390), CPM Lowell testified that she believed that Ms. Darbasie might have been the aggressor in the dispute. (T. 1390) Conversely, CPM Lowell testified that one of the reasons Ms. Darbasie s children were removed was that ACS feared that the father might return and cause another incident of violence. (T. 1390) Domestic violence specialist Cheryl Meyers, who was consulted about the case, (T. 1365) disagreed with the decision to remove the children, and gave her opinion to the ACS workers on the case. (T. 1237-39)

ACS charged both Ms. Darbasie and her husband with child neglect, claiming that both "engage in domestic violence... in the presence of the children." (Ex. 231) That was the only charge levied against Ms. Darbasie (Ex. 231), although ACS lodged additional charges against her husband. Ms. Darbasie s children were finally returned to her custody on August 3, 2001. As of this date, she is still being prosecuted by ACS for child neglect.

7. Sandra Determan

Class member Sandra Determan is the mother of Dominique, age 10, and was pregnant with her second child at the time of trial. (T. 614-15) On June 7, 2001, Ms. Determan became involved in an argument with the father of her unborn child. (T. 616) Dominique was not present when the argument began, but later came into the room. (T. 616-17)

After the argument ended, Ms. Determan went to the hospital because her wrist hurt. (T. 618) She believes that she accidentally injured herself during the argument. (T. 650-51 ) Since she was pregnant, Ms. Determan was kept in the hospital overnight. (T. 618) She was discharged from the hospital shortly after noon on June 8, 2001. (T. 618)

That afternoon, two ACS workers came to the apartment to interview Ms. Determan and Dominique. (T. 620-21) They told Ms. Determan that she must go to the police station to obtain an order of protection immediately, or they would remove her daughter would be removed from her. (T. 621) The ACS caseworkers told Ms. Determan that the order of protection was for ACS s legal protection (T. 622): if the caseworkers left without an order of protection, they would allegedly be liable if something happened to Dominique. (T. 623) Ms. Determan agreed to obtain an order of protection (T. 625), but before Ms. Determan and the caseworkers left the apartment, the alleged batterer returned. (T. 624) The caseworkers told Ms. Determan to wait while they spoke with him. (T. 625-26) While Ms. Determan waited, the ACS workers issued a new instruction -- Dominique would be removed from her mother. (T. 626) The police came and took Dominique away, screaming. (T. 627) ACS s purported reason for removal was that things had "taken too long."

ACS did not tell Ms. Determan where Dominique was, or even if Dominique was safe. (T. 627-28) Ms. Determan finally learned of her daughter s whereabouts when 10-year-old Dominique slipped out of the foster home and called from a pay phone in the Bronx. (T. 628) During the next few days, ACS did not give Ms. Determan any information whatsoever. (T. 629) On June 11, 2001, (T. 630), the case appeared in Family Court. (T. 629) When the case was called, a court-appointed attorney was placed next to Ms. Determan who, when asked by the judge, said that she knew nothing about the case. (T. 631)

Ms. Determan returned to court on June 12, 2001, represented by Lansner & Kubitschek, but ACS did not produce Dominique, and the case was adjourned again. (T. 634) On June 13, 2001, the Family Court ordered that Dominique be returned to her mother immediately. About a week later, at ACS s mandatory planning meeting (T. 636), the ACS caseworker was so unprepared that he did not even know Dominique s whereabouts. (T. 637) The neglect case against Ms. Determan is still pending.

On July 18, 2001, this Court requested that ACS explain why Ms. Determan was still being prosecuted in the Family Court. Counsel for ACS replied that they would inquire and respond. (T. 659-60) To date, counsel have still not responded and Ms. Determan is still being prosecuted. In fact, on October 12, 2001, after the birth of Ms. Determan s second child, ACS filed a new neglect petition against Ms. Determan, alleging that she neglected that child by having "engaged in domestic violence" with the child s father prior to the birth of the child, i.e., the same incident which formed the basis the charges against Ms. Determan with regard to Dominique. ACS made the allegations despite the August 14, 2001, directive of ACS to cease using that terminology. (Ex. MMM)

8. Jane Doe

Class member Jane Doe is one of the women whose cases were reviewed by the Office of Children & Family Services for its "ASFA Domestic Violence Study / New York City Reports." (Ex. J, Ex. 180) Her case record was also assessed by plaintiffs expert Laura Fernandez in her supplemental report. (Ex. 137a)

Jane Doe was the mother of one child, born June 1, 1993. (Ex. 180) She was separated from her husband because of his a drinking problem. On September 10, 1999, he tried to pick up the child at school while intoxicated. (Id., p. S01647) The school guidance counselor reported the incident to the State Central Register. (Id., p. S01676) When ACS investigated, ACS found that Ms. Doe was a responsible and involved caretaker (Id., p. S01668-69), and that she was a victim of domestic violence by Mr. Doe. (Id., p. S01647, S01676, S01689)

Despite Mr. Doe s identification as a perpetrator of domestic violence, ACS referred the Does for family counseling. (Id., p. S01684) While offering services to keep the family together, ACS demanded exactly the opposite from Ms. Doe: she had to "take an active role in protecting her ch[ild]" by going to a shelter or calling police, otherwise "we will deem this as neglect on her part." (Id., p. S01689) ACS clung to its contradictory approach, when Ms. Doe expressed a fear of recurring domestic violence (Id., p. S01670), and even after she telephoned ACS on November 9, 1999, and told the caseworker that Mr. Doe had begun drinking again. (Id., p. S01671) ACS did nothing in response to Ms. Doe s telephone call; instead, on November 17, 1999, ACS closed the case, because it appeared Ms. Doe could protect her child. (Id., p. S01691)

On November 24, 1999, the school reported that the child told said that Mr. Doe had threatened to kill Ms. Doe the prior day before. (Id., p. S01651) Upon the direction of CPM Nat Williams, ACS removed Ms. Doe s child without court order. (Id., p. S01651) ACS did not interview Ms. Doe or explore other options before removing the child the same day. (Id., p. S01651) On November 26, 1999, ACS coerced Ms. Doe into signing a Voluntary Placement Agreement by promising that the child could live with an out-of-state relative. The child remained in foster care with strangers until December 2, 1999. (Id., pp. S01651-52)

On December 29, 1999, Ms. Doe called ACS to say that she wanted her child back. (Id., p. Z6060) Despite Ms. Doe s withdrawal of her "consent" to placement, ACS kept the child in the relative s custody and did not file a Family Court neglect petition until March 21, 2000. (Id., pp. Z5860-63), at which time ACS charged Ms. Doe and her husband with "a history of engaging in domestic violence in front of the child" and with refusing to cooperate with referrals. (Id., p. Z5863) Ms. Doe was permitted only weekly, supervised visitation at the ACS field office. (Id., p. Z5879) The child was not returned to Ms. Doe until June, 2000. (Id., pp. Z5874, Z5858) In Family Court, the case was disposed of by issuance of a one-year adjournment in contemplation of dismissal as to both parents, with ACS supervision to expire on August 2, 2001. (Id.. p. Z5941) Mr. Doe, who had threatened to kill Ms. Doe with a knife among other acts of violence, received the same disposition as Ms. Doe, who was not alleged to have committed any acts of child neglect other than being victimized by her husband.

9. "Ms. Exhibit 234"

Class member Ms. Exhibit 234, the mother of three children, is one of the women whose cases were reviewed by the Office of Children & Family Services in its study. (Ex. J) On September 14, 1999, ACS received an anonymous report regarding alleged ongoing domestic disputes between Ms. Exhibit 234 and the father of their three children. (Ex. 234, p.S00324) The report appeared to be related to a landlord-tenant dispute. (Id., p. S00327)

ACS began to investigate the charges on the same day. The caseworker concluded that there was a history of domestic violence against Ms. Exhibit 234, with several reports to the police between November 10, 1995 and January 29, 1999. (Id., p. S00333) However, there was no evidence that the batterer was then living in the home. (Id., p. S00330)

ACS used various tactics in attempting to "prove" domestic violence, such as lying to the children and telling them that a neighbor had seen a man coming to and from their home. (Id., p. S00330) Despite their efforts, ACS found no evidence of ongoing domestic violence. (Id., p. S00322-23) ACS marked the case against Ms. Exhibt 234 indicated "only on the basis of numerous past DV incidences," since the batterer was "obviously no longer in the home." (Id., p. SS00337)

10. Michele Garcia

Class member Michele Garcia, who works as a dental assistant, is the mother of three children, Benjamin, born June 23, 1994, Giselle born December 27, 1986, and Jordan, born February 13, 1990. In January, 1999, Ms. Garcia separated from Benjamin s father. Later Ms. Garcia made reports to the local precinct regarding visitation disputes. (Ex.89, p. 100111-12) Benjamin s father never assaulted Ms. Garcia during any of the disputes. (Id.)

On July 6, 1999, upon returning Benjamin from a visit, Benjamin s father saw a friend visiting Ms. Garcia and flew into a rage. He attacked Ms. Garcia s friend with a meat cleaver, and then attacked Ms. Garcia as she tried to intervene. (Id., p. 100089) Ms. Garcia was hospitalized for 11 days with damage to her pancreas. (T. 1349-50)

After she was discharged from the hospital, Ms. Garcia moved in with her aunt while waiting to move to a new apartment. (Ex. 89, p. 100109) On July 27, 1999, Ms. Garcia obtained an order of protection against her batterer. (T. 1382-83)

On July 19, 1999, Ms. Garcia s counselor at Victim s Services Agency reported to the State Central Register that Benjamin s father had mistreated the children by assaulting Ms. Garcia. ACS contacted Ms. Garcia and told Ms. Garcia that they must interview the children, by state mandate. Ms. Garcia scheduled the interview for July 30, 1999. (Ex. 89, p. 100102-03) She also voiced her concern about having a stranger interview her children about the domestic violence. (Ex. 89, p. 100102)

The caseworker consulted an ACS attorney, who advised that ACS had no basis to force Ms. Garcia to schedule an earlier appointment. Nonetheless, the caseworker attempted two more unscheduled visits at the home of the aunt with whom Ms. Garcia and the children were residing. On July 29, 1999, Ms. Garcia canceled the July 30th appointment with the ACS caseworker because she felt that ACS was not cooperating with her. She felt that her children, who had been traumatized by the incident, would be re-traumatized by ACS. At trial, plaintiff s expert Evan Stark testified that Ms. Garcia s concern about re-traumatizing her children, through insensitive and uninformed interviews, was supported by good clinical evidence. (T. 1582)

ACS domestic violence specialist, Cheryl Meyers, interviewed Ms. Garcia and her children on August 2, 1999. (T. 1234-45, Ex. 89, p. 100104) Ms. Garcia agreed to attend family counseling at the Puerto Rican Family Institute. (Ex. 89, p. 100105) Ms. Meyers did not believe that removal was necessary in the Garcia case. (T. 1234) She felt that Ms. Garcia was a strong woman who would do anything to protect her children. (T. 1234)

Nevertheless, citing Ms. Garcia s alleged "refusal to cooperate" with ACS, on about August 25, 1999, CPM Bonnie Lowell directed the filing of a neglect case against Ms. Garcia, asking for a remand of her children and alleging that they were in imminent danger. (Ex. 89, p. 100117) The children were removed from their mother two days later, on August 27, 1999, and placed in foster care at the home of their aunt. (Ex. 89, p. 100117). As the children were being removed from their mother, the ACS caseworker stated that "it was over a phone call," and that if Ms. Garcia had called him, the children would not have been removed. (T. 1341)

The children did not receive counseling while they were in foster care (T. 1343)

On August 30, 1999, Ms. Garcia visited the field office to show copies of her order of protection, housing transfer papers, and hospital discharge papers. Ms. Garcia went to the Puerto Rican Family Institute, and the supervisor there thought that Ms. Garcia was very receptive to services and willing to do whatever was necessary to get her children back. (Ex. 89. p. 100118) The children were subsequently returned to Ms. Garcia. (T. 1345)

11. Crystal Rhodes

Class member Crystal Rhodes has two children, Alfonso, born April 21, 1996, and Alazia, born May 20, 1998. On October 18, 2000, Ms. Rhodes went to Manhattan Family Court and obtained a temporary order of protection against the father of her children, who had battered her. (Ex. 102) The police served the batterer with the order of protection and escorted him from the family s apartment. Ms. Rhodes asked the police to take his apartment keys, but they did not. (T. 210) Believing that he would return to the family apartment, she fled. (T. 209-10)

Ms. Rhodes was due back in Family Court on October 30, 2000, but did not go because she was afraid to return to the apartment to pick up necessary papers. When Ms. Rhodes did not appear in court, the judge ordered ACS to investigate.

An ACS caseworker arrived at Ms. Rhodes apartment between 6:30 and 7:30 p.m. on October 31, 2000. (Ex. 171B, p. 34) When the worker rang a buzzer, a male voice allegedly answered. When the caseworker identified herself, there was no response. The caseworker got into the building, went to the apartment, and knocked on the door. There was no response. The caseworker slid a form letter, explaining that ACS had received a report, under the door. (Ex. 171A, p. 8) The caseworker then went to the home of the maternal grandmother, who said that the Ms. Rhodes and the children were out "trick or treating." (Ex. 171B, p. 35) The following day, November 1, 2000, CPM Roberto Chamorro decided to remove the children from Ms. Rhodes, even though ACS had not spoken to Ms. Rhodes (T. 204), solely because Ms. Rhodes had not gone to court on October 30, 2000, to extend her order of protection. (T. 218)

That same day Ms. Rhodes called ACS. The caseworker, who claimed that the children were in immediate danger from their father and knew that he had access to the apartment, told Ms. Rhodes to bring her children to the apartment immediately and wait. (Ex. 171B, p. 24, 25) Ms. Rhodes waited at the apartment until about 7:00 p.m., when the caseworker arrived with four police officers and took the children away (Ex. 171B, p. 32) without court order. (Ex. 102) ACS did not offer any services to prevent the removal of the children. (T. 212, Ex. 171B, p. 35)

On November 2, 2000, ACS filed a neglect petition against Ms. Rhodes in the Family Court, alleging that she "engaged in an ongoing pattern of domestic violence.... " (Ex. 102) When the matter appeared in Family Court, Ms. Rhodes was assigned counsel. The Family Court judge ordered ACS to locate shelter care for Ms. Rhodes and her children. The caseworker refused to follow the judge s order, stating that she "did not have time to look into that." (Ex. 171B, pp. 36-37) Ms. Rhodes retained counsel at Sanctuary for Families Center for Battered Women s Legal Services and demanded the return of her children. ACS refused.

After a hearing pursuant to FCA Sec.1028, on November 9, 2000, the Family Court ordered the return of the children to their mother, and ordered ACS to find a domestic violence shelter for the family. The judge found that Ms. Rhodes had made "diligent and valiant efforts" to protect her children from witnessing domestic violence, "although those efforts had not been successful to date." (Ex. 171B, p. 10) ACS continues the prosecution against Ms. Rhodes in the Family Court, continuing to claim that she "engages in domestic violence." (T. 223-24, Ex. 251)

Class member Michelle Norris is the mother Justin, born June 27, 1999 (T. 1181) She is employed at Kennedy Airport. (T. 1181)

In March, 2000, an ACS caseworker visited the home, where Ms. Norris, Justin s father, and Justin resided. She told Ms. Norris that ACS was investigating allegations of domestic violence, drug use, dirt in the home, and failure to supervise the child. (T. 1184-85) The caseworker assured Ms. Norris that she did not have anything to worry about, and that her son appeared healthy. (T. 1185) She also directed Ms. Norris to move out of the apartment. (T. 1186)

Later, while Justin was asleep in the bedroom and Ms. Norris was packing to leave the apartment, Justin s father attacked her. (T. 1186) When the police arrived, Justin s father ran into the bathroom and bit himself. When he emerged, he announced that Ms. Norris had bitten him. The police arrested both parents. (T. 1187)

At the police station, the domestic violence officer voided the arrest and sent Ms. Norris home, while holding the batterer in custody. (T. 1188, Ex. 218) Ms. Norris obtained an order of protection (T. 1188-89, 1209, Ex. 219) and moved in with a friend. (T. 1189)

At some point, Ms. Norris returned to the apartment, with her son, to collect her belongings. (T. 1189) The police had advised her that Justin s father was not permitted to return to that address (T. 1215), but he came over when he learned that Ms. Norris was there and attacked her again. (T. 1190) When the police arrived, he ran into the bathroom with Justin and locked the door. (T. 1190) The police told Ms. Norris that unless she left the home, they would arrest both her and Justin s father. They told her that she could retrieve Justin in the morning, and they escorted her away, leaving Justin and his father locked in the bathroom. (T. 1190-91)

The following day, the ACS caseworker called Ms. Norris, told her that ACS had custody of Justin, and ordered her to bring him to ACS within 24 hours. (T. 1191) Although Justin needed hospitalization for pneumonia, the caseworker said that the child now belonged to the state and that ACS would "handle it." (T. 1192-93) The caseworker told Ms. Norris that she had neglected her son by leaving him with his father the previous night. (T. 1193) An ACS supervisor later admitted that the caseworker was "fairly new" and that Ms. Norris behavior did not amount to neglect. (T. 1203)

The following day, Ms. Norris brought her son to the ACS office as instructed. (T. 1194) She then went to directly Queens Family Court, expecting that the judge would return Justin to her, but ACS filed a petition against her for child neglect, alleging that she and Justin s father "engaged in" domestic violence and that both parents used marijuana. (T. 1195) ACS later admitted that the drug charge was untrue, but did not withdraw it. (T. 1196-97) Justin was placed first in the home of his paternal grandfather (T. 1199) and then with his maternal grandmother. (T. 1200) ACS barred Ms. Norris from staying overnight at her mother s home. (T. 1201)

Ms. Norris was first represented by assigned counsel, who did not inform her that she could demand an immediate hearing for the return of her child (T. 1198) and did not return her telephone calls. (T. 1198) Ms. Norris subsequently retained Queens Legal Services. (T. 1198)

ACS held a "family" conference with Ms. Norris and her batterer. (T. 1199) At the conference, ACS ordered Ms. Norris to undergo counseling, attend parenting skills classes, maintain a full-time job, and rent a two-bedroom apartment in order to regain custody of her child. (T. 1198-99, 1203-04) After Ms. Norris completed the assigned tasks, the caseworker came to Ms. Norris new apartment with one more order: that Ms. Norris make an "admission" to the neglect charges pending against her in Family Court. (T. 1206) If Ms. Norris did so, ACS promised to return Justin immediately, but if Ms. Norris refused, the caseworker threatened, weeks would pass before she regained custody of her child. (T. 1206) Ms. Norris refused.

In September 2000, the Family Court ordered that ACS return the child to Ms. Norris. (T. 1208) Ms. Norris accepted an Adjournment in Contemplation of Dismissal, and remains subject to ACS supervision. (T. 1210)

Class member Xiomara C. is the mother of the two children who are the representatives of plaintiff sub-class B, J.C., and G.C.. (Ex. 253A) On March 10, 2001, the children s father punched Ms. C., threatened her with a knife, and dragged her to the shower where he scalded her with hot water. He then grabbed J.C. and locked himself in the bathroom until the police arrived. When the two emerged from the bathroom, J.C. had a bruise over his eye and scratches on his nose. (Ex. 253A, p. 080004) The batterer was arrested. (Ex. 253A, p. 080004)

The following day, March 11, 2001, ACS removed the children from their mother without court order. (Ex. 253A, pp. 080002, 080006) On March 13, 2001, ACS charged Ms. C with child neglect on the grounds that she "admitted" that "she and the respondent father have a 6 year history of domestic violence," although the petition alleged only violence by the father against Ms. C. (Ex. 253A, p. 080004) ACS alleged that in March 2000, Ms. C. and her batterer had been involved with ACS due to reports of domestic violence and that they were both referred for preventive services with an agency. (Ex. 253A, p. 080005) The petition claims that neither parent made themselves available for intake with the preventive agency. (Ex. 253A, p .080005)

14. Olga Urena

Class member Olga Urena is the mother of one child, Angelika, born December 1, 2000. (Ex. 244) The child s father does not reside with the mother and child. (Ex. 244). By petition dated June 6, 2001, ACS charged Ms. Urena with neglect on the grounds that the parents "engage in domestic violence in the presence of the child." According to ACS, Ms. Urena "engaged in a particularly violent altercation" with her child s father on March 29, 2001, when the child s father beat her and threatened to hurt her if she told anyone about the violence. (Ex. 244) The petition also alleges that although Ms. Urena agreed with service plans and referrals, she did not "fully" comply with the ACS mandates. (Ex. 244) The petition does not allege that ACS had asked the batterer to comply with any directives at all.

ACS continues to prosecute Ms. Urena in the Family Court.

15. Jessica Valentin

Class member Jessica Valentin is the mother of Jose, born August 31, 1998. (Ex. 107a) Ms. Valentin is employed. (Ex. 119, p. 22)

On January 6, 2001, her child s father assaulted Ms. Valentin, tied her up with duct tape, and beat her with a hanger while their son was in the other room. (Ex. 119a, pp. 15-16) On January 9, 2001, under pretense of going to work, Ms. Valentin went to the police instead. According to the police, Ms. Valentin waited until January 9, 2001, before notifying the police because she could not safely get away from the home until that time. (Ex. 119a, p. 22, Ex. 119, p. 31) The police immediately arrested the batterer (Ex. 119a, pp. 18-19) and charged him with battery in the second degree and unlawful imprisonment. (Ex. 119, p. 34) Ms. Valentin then took her child and fled to a battered women s shelter (Ex. 119a, p. 8), which the police helped her find. (Ex. 119a, p. 19) Ms. Valentin never returned to live with her child s father (Ex. 119a, pp. 8-9) and cooperated with his prosecution. (Ex. 119a, p. 9)

On or about January 12, 2001, ACS received a report about the incident. (Ex. 119a, p.7) The caseworker went to the home, but Ms. Valentin was not there. (Ex. 119a, p. 7) The child s father, the batterer, told the caseworker that Ms. Valentin was no longer living in the home with him, and that she had taken her child with her. (Ex. 119a, p. 7)

On January 16, 2001, despite the fact that ACS knew that the child s father was the perpetrator of violence and that Ms. Valentin had fled the violence, and despite the fact that ACS did not think that Ms. Valentin was a neglectful mother (Ex. 119a, p. 9), ACS commenced proceedings in the Family Court charging both parents with neglect, alleging that they "engage in domestic violence in the presence of the subject child." (Ex. 107a, p. 4) ACS sought an order to remove Jose from Ms. Valentin. The Family Court judge requested that plaintiffs counsel represent Ms. Valentin, and subsequently denied the ACS request for removal.

ACS based its neglect charges in part on the fact that in October, 2000, it had investigated the family after the child s father threatened Ms. Valentin over the phone. (Ex. 119, pp. 36-37) On that occasion, Ms. Valentin had obtained an order of protection (Ex. 119, p. 22) which did not exclude her child s father from their home. (Ex. 119a, p. 4) During that first investigation, an ACS caseworker interviewed Ms. Valentin and the child s father (Ex. 119a, p. 5), and concluded that the family should engage in services, including family counseling. (Ex. 119, p. 16) ACS found no need for any further order of protection (Ex. 119, p. 13) During the investigation, the caseworker observed Jose to be playful, happy, and well-behaved (Ex. 119a, p. 10), and found Ms. Valentin and the child s father to be responsible parents. (Id., p. 6) The case was marked "unfounded" as against Ms. Valentin. (Ex. 119, p. 19)

Nevertheless, ACS cited that prior incident as part of Ms. Valentin s allegedly neglectful behavior. (Ex. 107a, p. 4) ACS continues its prosecution against Ms. Valentin in the Family Court, continuing to claim that she "engages in domestic violence."


ARGUMENT

POINT I

PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF

The trial for a preliminary injunction began on July 9, 2001. At the conclusion of the trial, City defendants stated that they were willing to deem the matter a trial on permanent injunctive relief as well. (T. 2799-2800) Plaintiff mothers and plaintiff children are likewise willing to treat the trial as one on the merits of plaintiffs claims for injunctive relief. Plaintiff mothers submit that the evidence demonstrates that they are entitled to both preliminary and permanent injunctive relief.

A. Permanent injunction

To obtain a permanent injunction, a plaintiff must show "the absence of an adequate remedy at law and irreparable harm if relief is not granted." New York State National Organization for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989). Plaintiff mothers have satisfied those criteria.

The Supreme Court has held that allegations of certain constitutional violations completely satisfy the requirements of the irreparable harm prong of the preliminary injunction test. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976). The Second Circuit has applied that rule to constitutional violations generally, stating that there is a "presumption of irreparable injury that flows from a violation of constitutional rights. . . . it is the alleged violation of a constitutional right that triggers a finding of irreparable harm." Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996); see, also, Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary," quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2948, at 440 (1973)). In fact, courts have found that the law in the Second Circuit is "that constitutional deprivation constitute per se irreparable harm." Scelsa v. City University of New York, 806 F.Supp. 1126, 1135 (S.D.N.Y 1992); see also, Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); Doe v. Pataki, 919 F.Supp. 691, 698 (S.D.N.Y. 1996).

In the instant case, plaintiff mothers and adult class members suffer irreparable harm as the result of the unconstitutional policies and practices of the Administration for Children s Services ("ACS"): 1) ACS deprives them of the custody of their children even though they are not abusive or neglectful; 2) ACS deprives them of the custody of their children without notice or an opportunity to be heard; 3) ACS prosecutes them in the New York Family Court maliciously, for reasons other than to protect children; 4) ACS retaliates against some of the mothers by continuing to prosecute them because they have exercised their constitutional right of access to this Court. Those deprivations implicate the mothers constitutional rights.

In the instant case, plaintiff children and infant class members also suffer irreparable harm as the result of the unconstitutional policies and practices of the Administration for Children s Services ("ACS"): 1) ACS deprives them of their mothers even though the mothers are not abusive or neglectful; 2) ACS deprives them of their mothers without notice or an opportunity to be heard. Those deprivations implicate the children s constitutional rights.

As to the second prong of the test, the absence of an adequate remedy at law, plaintiff mothers submit that no amount of money can compensate for the loss of one s children. The relationship between parent and child is "more precious than mere property." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972). Disruption of that precious relationship, even on a temporary basis, cannot be adequately redressed by an award of money damages. Moreover, the United States Supreme Court has cautioned that it is error to argue that "harm can be done if it can be undone." Stanley v. Illinois, 405 U.S. 645, 647, 92 S.Ct. 1208, 1210-11 (1972).

B. Preliminary injunction

A plaintiff seeking a preliminary injunction must demonstrate "(1) that [she] will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in its favor." Brewer v. West Irondequoit Cent. Sch. Dist., 212 F.3d 738, 743-44 (2d Cir. 2000), citing to Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999); see also, International Brotherhood of Teamsters v. Local Union No. 810, 19 F.3d 786, 789 (2d Cir. 1994); Deeper Life Christian Fellowship, Inc. v. Board of Education, 852 F.2d 676, 679 (2d Cir. 1988). Plaintiff mothers have already demonstrated that they have suffered irreparable injury. They also have satisfied the second prong of the test: they are likely to succeed on the merits.

"In the preliminary injunction context, a likelihood of success exists if the party seeking injunctive relief shows that it has a better than negligible chance of succeeding on the merits." Meridian Mutual Insurance Co. v. Meridian Insurance Group, Inc., 128 F.3d 1111, 1114 (7th Cir. 1997) (internal quotations omitted). Plaintiffs easily satisfy that test.

Plaintiffs here have demonstrated that they have a substantial likelihood of success on the merits. As this Court has found, "Two months of evidentiary hearings during July and August with supporting testimony from scores of witnesses and hundreds of documents lend substantial support to [plaintiffs ] claims." (Memorandum and Order, August 16, 2001, p. 2, 2001 WL 951716 *1) Also, as this Court stated to Commissioner Scoppetta, "the evidence also shows that you did not address... the battering problem when you began to change the administration." (T. 2601) "The evidence... has convinced me that the Agency is too ready to take children from battered mothers who are otherwise capable of and interested in protecting their children." (T. 2601) "The mother is punished by being battered and then she is punished again by being charged with engaging in domestic violence." (T. 2603) "Her child is taken away, at least for some time, not returned sufficiently promptly, often with the order of the court." (T. 2603) "The child is substantially punished, sometimes by observing the mother being battered and then by being taken out of the custody of the mother for a substantial period of time." (T. 2603) Those statements were confirmed when Commissioner Scoppetta conceded that "there have been cases, where the concerns [that Court has] expressed have in fact been present." (T. 2606-07).

The evidence presented by plaintiffs at trial has shown that plaintiff mothers and plaintiff children are entitled to a injunctive relief. Plaintiff mothers presented this Court with a wealth of evidence regarding City defendants unconstitutional removal of their children and State and City defendants unconstitutional denial of counsel to the mothers. Those issues are magnified by the evidence presented at the hearing, recognized in the findings of this Court, that shows these incidents occur, by defendants own estimate, at least 80 times per year, and as often as 267.

Indeed, the evidence was so clear as to plaintiffs likelihood of success on the merits that, in the middle of trial, City defendants announced tentative steps to overhaul their policies and practices with regard to battered women. The announcement included a new Domestic Violence Protocol (Ex. PP), dated July 20, 2001, which presently exists in draft form only, and a new Casework Practice Guide, dated July 20, 2001 (Ex. QQ), which also exists in draft from only. More significantly, on August 14, 2001, in the middle of City defendants presentation of their case at trial, City defendants unveiled a new memorandum (Ex. MMM), effective immediately (T. 2341-42), which dramatically changes the manner in which ACS will handle cases of domestic violence from now on. As of August 14, 2001, ACS will no longer charge battered mothers with "engaging in domestic violence" as a form of child neglect. ACS recognizes "this usage misstates the nature of the victim s role in the violence and relieves the primary aggressor of his/her responsibility for the violence. . . ." (Id.) All the above policy changes being proffered by ACS demonstrate plaintiffs substantial likelihood of prevailing on the merits.

Given those major policy statements, City defendants claim that state law is on their side rings hollow. Assuming that City defendants continue to raise that claim, the claim is based upon a misreading of the decision upon which City defendants rely, Matter of Lonell J., 242 A.D.2d 58, 673 N.Y.S.2d 116 (1st Dept. 1998). In Lonell J., supra, at 118, the court ruled that "parents spousal abuse, no less than their drug and alcohol abuse... should be considered [child neglect under the Family Court Act]. Plaintiffs and class members have no objection whatsoever to ACS filing child neglect cases against the batterers, those who abuse their spouses. However, while battering of a spouse may constitute child neglect on the part of the batterer, City defendants improperly invert that rule, defining being battered by a spouse as child neglect on the part of the victim.

POINT II

CITY DEFENDANTS VIOLATE PLAINTIFFS'
RIGHTS TO FAMILY INTEGRITY

The right of families to live together and to raise their children without the "coercive interference of the awesome power of the state" is part of liberty, guaranteed by the Fourteenth Amendment. Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977). By separating children from the custody of their battered mothers solely or primarily because the mothers are victims of domestic violence, City defendants violate the constitutional rights of both the children and the mothers.

A. Constitutional rights of parents

The right of a parent to the care and custody of her children is one protected by the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). The Constitution protects that liberty interest by prohibiting the government from depriving fit parents of custody of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977).

Specifically, the Constitution allows the family, and not the government, to make decisions that involve marriage and bearing children. See, e.g., Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 10 (1967); Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965). When the family has children, the family, not the state, has the right to make decisions regarding the upbringing of those children. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).

The Supreme Court has held that the Constitution prohibits the State from making decisions about various aspects of child-rearing, and requires that the parents make those decisions. Thus, the parents have a constitutional right to determine the type of medical treatment that the child will receive. Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). The parents have a constitutional right to determine whether the child attends private school or public school. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). The parents have a right to determine whether the children will study a foreign language. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The government has no right to second-guess those decisions unless the parent is unfit. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

B. Constitutional rights of children

The right which the Constitution protects is not that of the parents alone. Rather, it is "the right of the family to remain together without the coercive interference of the awesome power of the state." Robison v. Via, 821 F.2d 913, 920 (2d Cir. 1987), quoting Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977) (emphasis added). The right to preservation of family integrity "encompasses the reciprocal rights of both parent and children." Greene v. City of New York, 675 F. Supp. 110, 114 (S.D.N.Y. 1987). Thus, "until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, . . the interests of the child and his natural parents coincide to favor use of error-reducing procedures." Santosky v. Kramer, 455 U.S. 745, 760-61, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599 (1982). The government's infringement of that vital interest, by depriving a child of his or her parent, is a violation of the Constitution. Greene v. City of New York, 675 F.Supp. 110, 113 (S.D.N.Y. 1987).

A "child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest." Curnow v. Ridgecrest Police, 952 F.2d 321, 326 (9th Cir. 1991), quoting Smith v. City of Fontana, 818 F.2d 1411, 1419 (9th Cir.) cert. den. 484 U.S. 935 (1987). "The integrity of the parent-child relationship is harmed by depriving children of adult care." White v. Rochford, 592 F.2d 381, 383 n. 1 (7th Cir. 1979).

Plaintiffs submit that the instant case illustrates a particular type of decision which the state may not make B the decision of a battered woman as to what is the best safety plan for herself and her children.

Testimony of battered women, child protective managers, and experts has shown, almost without contradiction, that ACS deprives battered mothers of the right to make their own safety plans. ACS workers consistently overrule, or even disregard entirely, the safety plans that the mothers make. Instead, ACS makes its own plans for the mothers and children, plans which invariably involve separating the children from the mothers, to the great detriment of the emotional health of the children, and the constitutional rights of both children and mothers.

The City claims that "removals in domestic violence cases are the exception, not the rule." (City Mem. p. 26) The evidence shows that the opposite is true. The statistical evidence shows that ACS removed children in almost one out of four cases involving domestic violence: 24 percent (17 out of 71) in the OCFS study (Ex. 169), and 23 percent (11 out of 47) in the Reid study. (Ex. 17) Although ACS had plenty of opportunity to present its own witnesses, it produced no one who presented any evidence of any case involving a domestic violence victim whom ACS permitted to keep her children.

Likewise, the City claims that "Plaintiffs cannot prove that they, or the class members... face a real or immediate threat that their children will be removed in the future." (City Mem. p. 27) On the contrary, plaintiffs have proved that members of the plaintiff class face precisely that threat. ACS continues to remove children and continues to charge battered mothers with child neglect simply because they are being battered, as recently as June 6, 2001. (Ex. 244)

C. ACS removes children without probable cause

In 1996, under the direction of newly appointed commissioner Nicholas Scoppetta, ACS changed its mission statement to instruct staff to "resolve all ambiguities in favor of removing children from harm s way." Moreover, they are not to reunite the children with their parents until "the parents demonstrate that they can keep the children safe." (Ex. 37) That mission statement disregards the burden which the Constitution imposes on government -- to show probable cause to separate a child from a parent. ACS workers have followed this unconstitutional edict in handling their cases, including the class of mothers involved in this litigation. (T. 1034)

A child protective worker must have probable cause in order to remove a child from the custody of a parent. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999). Probable cause exists if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Hurlman v. Rice, 927 F.2d 74, 81 (2d Cir. 1991) see also, Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 1999) (police cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued, particularly where it is not clear that a crime has been - or will be B committed.), Sevigny v. Dicksey, 846 F.2d 953, 957 (4th Cir. 1988) (child abuse investigators have a duty to investigate information that would have clarified matters prior to separating children from their parents), BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (an officer has a duty to "make a thorough investigation and exercise reasonable judgment before invoking the awesome power of arrest and detention."). Since that evidence is the basis for removal of a child, it should be as reliable and as thoroughly examined as possible in order to avoid unnecessary harm to the family unit. Gottlieb v. County of Orange, 871 F. Supp. 625, 629 (S.D.N.Y. 1994) Decisions to remove children from a home without conducting the best investigation reasonably possible violate the parents and child s federal constitutional rights. Id.

In furtherance of their mission statement, ACS workers resolve all ambiguities by removing children regularly without constitutionally-mandated probable cause. Those removals are regularly based on completely inadequate investigations. At times, ACS removes children without interviewing the children or the mother. (T.863) According to CPM Chamorro, ACS may decide to remove a child prior to conducting any investigation, based only on the information contained in the initial report. (T. 100-01) Nat Williams admitted that while making the decision to separate mother and children, he "had never spoken to Ms. Nicholson." (T. 863)

POINT III

CITY DEFENDANTS VIOLATE PLAINTIFFS' RIGHT
TO PROCEDURAL DUE PROCESS

The Second Circuit, in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. den. 529 U.S. 1098, 120 S.Ct. 1832 (2000), held that a government child protective services must provide a predeprivation hearing before seizing a child, unless the child is in such immediate and grave danger that he agency does not have enough time to seek a court order. The evidence produced at trial shows that ACS caseworkers, supervisors and child protective managers remove children without court order when there is no immediate danger.

The City claims that plaintiffs "cannot show that there is a formal policy >officially endorsed by the municipality of removing children in all, or in anything even approaching a majority of, cases in which domestic violence against the mother is a factor." (City Mem. p. 31) On the contrary, plaintiffs have shown that the City endorses the removal of children from battered mothers solely or primarily because they are domestic violence victims. Indeed, the City admits that they did exactly that, i.e., that the removals and detentions of Sharwline Nicholson s children, Ekaete Udoh s children, Sharlene Tillett s son, Shqipe Berisha s son, Michele Garcia s children, and Maria Vasquez s children were all carried out in accordance with City polices and practices. (Notice to Admit, &&1, 2, 3, 6, 7, 11, 12, 16, 17, 18, 21, 22, 24, 25)

Likewise, ACS has admitted that it is their policy to commence and continue child neglect proceedings against battered mothers. (Notice to Admit &&4, 5, 8, 9, 10, 13, 14, 15, 19, 20, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36) ACS s admitted policy is to charge those mothers with "engaging in domestic violence." (See Ex.4a, 4b, 88, 91A, 91B, 91C, 102, 107a, 159A, 159B, 159C, 160A, 160B, 160C, 161, 222, 231, 244) Indeed, despite the pendency of the instant litigation and even after specific cases have been brought to ACS s attention, ACS continues to prosecute Jessica Valentin, Crystal Rhodes, Olga Urena, Sandra Determan, and Donna Darbasie, among others.

Defendants routinely violate Tenenbaum. Commissioner Scoppetta himself said that ACS sometimes removes children because "there is not cooperation on the part of the victim of domestic violence and they won t participate in the services." (T. 2532) Nat Williams put it even more bluntly. He said that ACS commonly removes children from battered mothers and then waits "a few days" before filing in court, because after a few days of ACS detaining the children, the mother will generally "agree to services," and ACS can avoid going to court. (T. 852) The coercion inherent in holding children, without court order, until the mothers agree to ACS s demands, is readily apparent.

Other uncontradicted evidence showed that ACS staff routinely remove children from battered women without court order, without investigating, and for often frivolous reasons. Roberto Chamorro made the decision to remove Crystal Rhodes children before he or his caseworkers ever spoke to her. (T. 209) Chamorro removed the children from Ms. Rhodes because when his caseworker pushed a buzzer to an apartment, an unidentified male voice answered (T. 209), even though Ms. Rhodes had moved out of that apartment to escape her batterer.

Dorabella Delamothe made the decision to remove the four Udoh children from their mother after her caseworker had determined that the girls could safely remain in their mother s custody, because she planned to summon both Mr. and Mrs. Udoh to Family Court to respond to neglect proceedings and she claimed not to know whether the teen-aged daughters had keys to the apartment in order to let themselves in while their mother was in court.

Nat Williams ordered the removal of Jane Doe s six-year-old daughter from Jane Doe s custody upon hearing that Doe s husband had pulled a knife on her the previous evening. Williams, who was substituting for the regular manager on the case, had not been involved in the investigation of the Doe family, and knew no further details about the incident involving the knife. (Ex. 180, p. S01651)

An unidentified ACS supervisor, who was not even present, ordered the removal of Dominique Moore from the custody of her mother Sandra Determan. The supervisor ordered the removal by calling the caseworker on her cellular phone and directing the caseworker to remove the child. The caseworker herself had shown no inclination to remove Dominique.

In all of those cases, there was no immediate danger to the children whom ACS removed. Indeed, in most of the cases, ACS witnesses did not even attempt to pretend that they removed the children without court order because the children were in such immediate danger that there was insufficient time to seek a court order. Rather, ACS staff in general, and ACS managers in particular, declined to seek court orders because it is less of a bother to remove a child than to request a court order, particularly if that request might be rejected.

POINT IV

CITY DEFENDANTS VIOLATE PLAINTIFFS RIGHT
TO BE FREE OF MALICIOUS PROSECUTION

Individuals have a constitutional right to be free of malicious prosecution. That right is guaranteed by the Fourth Amendment. Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). A claim of malicious prosecution will lie when defendants commence a prosecution without probable cause. Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir.1996); Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). A claim will also lie when defendants continue prosecuting an individual after probable cause has dissipated. Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996).

The elements of a claim of malicious prosecution are the same under both constitutional law and New York law. Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). A plaintiff must show four factors: 1) that defendants commenced or continued proceedings against plaintiff; 2) that the proceedings terminated in plaintiff s favor; 3) that there was no probable cause for the proceedings; and 4) that the proceedings were instituted with malice. Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991). A plaintiff may sue for malicious civil prosecution as well as for malicious criminal prosecution. Engel v. CBS, Inc., 184 F.3d 124 (2d Cir. 1999).

In a malicious civil prosecution case, the plaintiff must show a special injury. Id. That injury occurred in these cases: City defendants deprived plaintiff mothers of their children, in addition to prosecuting the mothers. In addition, when the children were returned, City defendants curtailed the plaintiff mothers liberty by forcing them to endure unannounced home searches and interrogations. The children were merely "paroled" to the mothers, not released outright. City defendants continued to exert control over the mothers and children s decision-making, going so far as to demand that Sandra Determan, one of the mothers, cancel her daughter s trip to California, where the child was going to spend a long-awaited vacation with her father.

There was no probable cause for these proceedings, and the proceedings were instituted with a wrong or improper motive, for a reason other than a desire for justice. Rounseville v. Zahl, 13 F.3d 625, 630 (2d Cir. 1993). Specifically, ACS instituted prosecutions against non-offending battered mothers for the purpose of obtaining control over those mothers. For example, defendant CPM Nat Williams prosecuted plaintiff Sharwline Nicholson, despite his acknowledgment that she was not neglectful. (T. 868) CPM Williams admitted that is a common practice. (T. 852-53) CPM James Stewart continued to prosecute class member April Rodriguez, even after he concluded that she was not neglectful. (T. 455-56, 460-61) He also admitted that he removes children and commences prosecutions for child neglect without assessing whether there is a legally cognizable claim against the battered mother. (T. 453) CPM Bonnie Lowell caused the prosecution of class member Michele Garcia because she did not return a phone call (T. 1341), and continued to prosecute Shqipe Berisha based on allegations she knew to be false. (T. 1361) And, ACS commenced neglect proceedings against Jessica Valentin, and continues the prosecution to this day, although ACS thought that Ms. Valentin was not neglectful.

POINT V

DEFENDANTS VIOLATE PLAINTIFFS RIGHT TO COUNSEL

A. Right to Adequate Assistance of Counsel in Family Court

Plaintiff mothers have already submitted a detailed argument on their legal entitlement to adequate assistance of counsel in child neglect proceedings. (See, Plaintiffs Memorandum of Law in Support of Their Motion for Preliminary Injunction Against Statement Defendants) This court has noted that in child neglect proceedings involving domestic violence, "The mother is not given proper legal counsel." (T. 2603)

B. Right to Counsel at 72-hour Conferences

At ACS conferences, such as the 72-hour conferences, battered mothers with allegations of child neglect or abuse pending against them in Family Court are asked to answer questions about their conduct related to those charges. ACS prohibits the mothers from bringing their Family Court attorneys to those conferences unless the Family Court cases are already completed. (Ex. U, p. 8) While the Family Court cases is pending, battered mothers are permitted to bring attorneys with them, as long as the attorneys whom the mothers bring are not the same attorneys who are representing them in Family Court. (Ex. U, p. 8) Plaintiffs challenge ACS refusal to permit mothers to bring their attorneys to such conferences as violations of the right to counsel and of the right to equal protection of laws.

1. Violation of the right to counsel

Where the right to counsel exists, that right guarantees the individual has, "at least after the initiation of formal charges, the right to rely on counsel as a >medium between [herself] and the State." Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 486 (1985). The 72-hour conferences fall into the category of proceedings at which a right to counsel exists. ACS schedules 72-hour conferences "within 3-5 days after a child has been removed from his or her home." (Ex. U, p. 1) When ACS has removed a child without court order, ACS must commence proceedings in the Family Court no later than the next business day. N.Y. Fam. Ct. Act Sec.1024. There is a right to counsel in the Family Court. N.Y. Fam. Ct. Act Sec.262(a)(1). Therefore, 72-hour conferences take place after ACS has commenced proceedings against the battered mothers in the Family Court, i.e., after the initiation of formal charges against the mothers in proceedings at which there is a right to counsel.

Moreover, individuals who have the right to counsel have the right to have their attorneys with them at "critical periods of the proceedings.... " United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931 (1967). It cannot be seriously disputed that 72-hour conferences are critical to Family Court proceedings. At those conferences, ACS asks battered mothers to participate in "a thorough review of the family s strengths and the safety and risk factors. . . ," i.e. the ways in which the mothers have allegedly neglected their children, thereby allegedly placing the children at risk. (Ex. U, p. 13) ACS will "encourage and facilitate parents participation in the conference." (Ex. U, p. 6) The conference will result in a "Conference Service Plan Agreement" which will go to the Family Court. (Ex. U, p. 3) ACS may report the mother s statements at a family conference to the district attorney. (T. 1705) And, if the parent reveals information during a family conference which is believed to constitute child abuse or neglect in addition to that the pending charges, that information will be used against the parent. (T. 1705, Ex. U, p. 11)

At the 72-hour conferences, battered mothers whose children have been removed by ACS will be encouraged to participate and to speak freely, in order to secure the return of their children. Since ACS is holding the children, the battered mothers have a strong incentive to cooperate with ACS as much as possible, in order to convince ACS to return the children, even if that cooperation entails making statements which may be extremely harmful to the mothers in the Family Court. Those mothers are in need of and entitled to counsel to advise them at such critical periods of the proceedings. ACS refusal to permit the mothers to bring their attorneys with them violates the mothers right to counsel.

As a matter of state law also, parents have a right to bring their attorneys with them to conferences. In Matter of Alexander L., 60 N.Y.2d 329, 469 N.Y.S.2d 626, 457 N.E.2d 731 (1983), the New York Court of Appeals held that a mother has the right to bring her attorney with her in a court-ordered psychiatric evaluation held in the course of a proceeding to terminate her rights. The Court based its holding upon the mother s statutory right to counsel "from the time of her appearance." Id. at 335, 469 N.Y.S2d at 629, citing N.Y. Fam. Ct. Act Sec.262(a).

As stated above, 72-hour conferences take place after the commencement of Family Court neglect proceedings against the battered mothers. Thus, as a matter of state law, the mothers have a right to bring their lawyers with them to the conferences. ACS ban on lawyers is a violation of state law as well as a violation of the United States Constitution.

2. Denial of equal protection of laws

While ACS prohibits certain battered mothers from bringing attorneys with them to the 72-hour conferences, it does not prohibit all battered mothers from doing so. When the battered mother s case is still pending in the Family Court, the battered mother may bring any attorney with her to the conference except the attorney who is representing her in Family Court. (Ex. U, p. 8, emphasis in original)

ACS has thus created two categories of battered mothers B those who can find other attorneys to bring with them to the conference and those who have only their Family Court attorneys. In general, the former class is comprised of mothers who are either richer -- and are able to hire separate counsel for the 72-hour conferences B or who are able to find another attorney to attend the conferences without charge. In general, the latter class is composed of battered mothers who are poor, and who cannot retain separate counsel to represent them at 72-hour conferences. However, the classification is not based solely upon wealth: some battered mothers who lack funds to hire attorneys may find attorneys to attend the 72-hour conferences with them, and ACS will permit those attorneys to attend as long as they do not represent the women in Family Court.

In order to discriminate between two groups of people, the government must have, at a minimum, a rational basis for doing so. City of Cleburne v. Cleburne Independent Living Center, 473 U.S. 432, 105 S.Ct. 3249 (1985). However, when a classification "significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 682 (1978).

In the instant case, the battered mothers have a fundamental right at stake, i.e., their fundamental liberty interest in the care and custody of their children. (See Point I, supra) The 72-hour conferences directly impact upon that right: the conferences generally take place when ACS has custody of the battered mothers children, and a major topic of discussion at those conferences is to "the best course of action for ensuring the safety of the child(ren). . . ," (Ex. U, p. 2) which necessarily includes a discussion of whether, and under what conditions, ACS will agree to return the children to the mothers. Indeed, as ACS recognizes, one of the beneficial outcomes of the 72-hour conferences is that "the child(ren) may spend less time in foster care." (Ex. U, p. 2)

Because of the critical importance of those conferences to the parent-child relationship, and because of the pendency of child neglect charges against the mothers, battered mothers should bring attorneys with them to the conferences. ACS s policy of permitting one class of battered mothers to bring attorneys to the conferences (those who can find separate counsel) while denying the same right to other battered mothers (those who cannot find separate counsel) is irrational, and interferes with a fundamental right of the mothers. This Court should enjoin that policy.

POINT VI

DEFENDANTS ILLEGALLY DEPRIVE
PLAINTIFFS OF SHELTER

The State of New York has an obligation, under its constitution, to provide shelter for homeless families. McCain v. Koch, 117 A.D.2d 198, 215, 502 N.Y.S.2d 720, 730 (1st Dept. 1986), rev. on other grounds, 70 N.Y.2d 109, 511 N.E.2d 62 (1987). Homeless mothers who are victims of domestic violence, and their children, thus have a right to shelter, protected by the New York State Constitution.

Under New York law, localities must provide special shelters for domestic violence victims. Specifically, the City of New York must "offer and provide emergency shelter and services at residential programs for victims of domestic violence.... " N.Y. Soc. Serv. L. Sec.131-u. Any victim of domestic violence who is seeking emergency shelter is eligible for a domestic violence shelter program. 18 N.Y.C.R.R. Sec.408.4(a)(1). There are no income restrictions on eligibility for those programs. 18 N.Y.C.R.R. Sec.408.5(c)(2).

New York City provides a woefully insufficient number of spaces in domestic violence shelters. There are only spaces for 1,400 domestic violence victims and their children. The number of requests for shelter far exceeds the number of places available. See supra, pp. 68-73.

When City defendants insist that battered mothers leave their homes and go into shelters as a condition of regaining or retaining custody of their children, while, at the same time, failing to providing place for those battered women in City-funded shelters, City defendants have violated the constitutional rights of the mothers to the care and custody of their children. See Point I, supra.

POINT VII

DEFENDANT CITY IS RESPONSIBLE
FOR THE VIOLATIONS OF PLAINTIFFS RIGHTS

Under 42 U.S.C. Sec.1983, a municipality is liable for its unconstitutional policies. Those polices may be either officially adopted rules of procedure, unofficial customs, or patterns and practices of behavior. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The evidence in the present action shows that City defendants have both an official policy and an unofficial custom of removing children from battered women and prosecuting battered women in Family Court for child neglect.

A. ACS unconstitutional policies

The evidence shows that ACS has a policy of removing children from the custody of battered mothers who are not themselves abusive or neglectful, based solely on the mothers status as domestic violence victims. ACS admits that they do exactly that. They admitted that their employees removal and detention of Shawrline Nicholson s children, Ekaete Udoh s children, Sharlene Tillett s son, Shqipe Berisha s son, Michele Garcia s children, and Maria Vasquez s children were all carried in accordance with the polices and practices of the City of New York. (Notice to Admit, &&1, 2, 3, 6, 7, 11, 12, 16, 17, 18, 21, 22, 24, 25)

Likewise, ACS has admitted that it is their policy to commence and continue child neglect proceedings against battered mothers (Notice to Admit &&4, 5, 8, 9, 10, 13, 14, 15, 19, 20, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36). ACS s admitted policy is to charge those mothers with "engaging in domestic violence." (See Ex.4a, 4b, 88, 91A, 91B, 91C, 102, 107a, 159A, 159B, 159C, 160A, 160B, 160C, 161, 222, 231, 234; Sub-Class B Plaintiffs Ex. 18)

In addition, there is the case of Jane Doe. On November 23, 1999, Jane Doe s husband threatened Jane Doe with a knife in the presence of their six-year-old daughter. (Ex. 180, p.S01651) Doe had separated from her husband almost three months earlier, on September 1, 1999, because of his drinking problem. (Id.at S01668) The next day, November 24, 1999, defendant Nat Williams immediately ordered ACS caseworkers to remove Jane Doe s child from her custody. (Id., p. S01651) ACS placed the child in foster care with strangers. ACS did not seek a court order before removing the child.

Although ACS pays lip service to the idea that keeping the mother safe keeps the child safe, ACS made no attempt to keep Ms. Doe safe from her husband and no attempt to ascertain what steps Ms. Doe had taken to make herself and her child safe from her husband. They didn t even speak to Ms. Doe.

ACS still does not understand its unconstitutional behavior. After six week of trial, and despite the issuance of a new policy statement (Ex. MMM), ACS continues to insist that they not only can but should remove children from mothers who are victims of domestic violence.

ACS s last witness, Lucy Sacks, gave ACS s approval to such a practice. She ratified Nat Williams decision to remove a child from her mother because the child s father, who did not live with the mother, had threatened the mother with a knife on the previous evening. According to Ms. Sacks, the mother (Jane Doe) was neglectful, and was guilty of "inadequate guardianship," because she failed to call the police, and approximately 24 hours had elapsed since the attack. That official approval and ratification is evidence of a policy. City of Canton v. Harris, 489 U.S. 378, 389-390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989).

City defendants claim that ACS removals of children from domestic violence victims are "judgment call[s] made in error," i.e., contrary to official ACS policy. (City Mem. p. 26) The notice to admit shows the contrary: ACS caseworkers acted pursuant to policy in those cases.

Plaintiffs have shown that ACS files petitions against domestic violence victims, charging them with child neglect solely because they are victims of domestic violence. In many cases, the petitions that ACS has filed in the Family Court allege that the mothers are neglectful solely by virtue of being victims of domestic violence. (Ex. 4a, 4b, 102, 107a, 231)

In other cases, the petitions that ACS has filed in Family Court contain allegations against the battered mothers which are so trivial that they do not constitute child neglect, and they do not provide a basis for removing the child. In the case of Sharlene Tillett, the only allegation other than domestic violence was that Ms. Tillett did not have a crib for her newborn. (Ex. 161) That allegation was insufficient to constitute neglect. (T. 1077-78) In the case of Shqipe Berisha, the only allegation against Ms. Berisha besides the charge that she was a victim of domestic violence was that she had taken Valium without a prescription on one occasion six months earlier. (Ex. 88) That allegation, by ACS s own admission, was an insufficient basis for removing Ms. Berisha s son or charging Ms. Berisha with neglect. (T. 1361)

City defendants claim that "the OCFS study shows that children were less likely to be removed from homes in domestic violence cases than in cases not involving domestic violence." (City Mem. p. 24) That statement is factually incorrect and legally irrelevant.

As a factual matter, the OCFS study does not show that ACS removed children less often in cases of domestic violence. ACS removed children from their homes in 17 of the 71 domestic cases which OCFS studied (Ex. 169), a total of 24 percent of the cases. In cases not involving domestic violence, OCFS found removals in 24 percent of the cases as well. (Ex. K)

As a legal matter, it is irrelevant that ACS removed fewer children from domestic violence victims. ACS should not have removed any children at all from domestic violence victims who are not themselves neglectful. That ACS removed fewer children from non-neglectful mothers than from neglectful mothers hardly speaks well of ACS.

City defendants assert that they do not have a "blanket policy" of removing children from battered mothers. (City Mem. pp. 24-25) Plaintiffs have never claimed that ACS has a policy of always removing all children from mothers who are domestic violence victims. Rather, plaintiffs have both alleged and proved that City defendants have a policy of removing children from the custody of mothers who are victims of domestic violence, and who themselves are not abusive or neglectful. Pursuant to that policy, too many caseworkers, supervisors, and child protective managers remove too many children from the custody of non-neglectful battered mothers and take those children into government custody.

By holding battered women responsible for their batterers behavior -- by taking the children away from their battered mothers because the mothers "allowed" the children to see them being battered -- ACS is returning to the medieval notion that "the husband and the wife are one, and the husband is that one," i.e., that the battering man and the battered woman are a unit (albeit a dysfunctional one), and that his actions are, by extension, her fault as well as his. That outdated notion has long been abandoned by the courts and by our society. See, e.g., Trammel v. United States, 445 U.S. 40, 44, 100 S.Ct. 906, 909 (1980). By grouping the batterer and his victim together, and treating them as one couple, rather than two separate people, ACS does enormous damage to the battered mother, the innocent child, and the United States Constitution.

B. ACS unconstitutional practices

A persistent practice may constitute municipal policy, for purposes of liability under 42 U.S.C. Sec.1983, whether it is carried out by the policymakers themselves, by other high-ranking officials, or even by subordinate employees. Sorlucco v. New York City Police Department, 971 F.2d 864, 871 (2nd Cir. 1992) (citations omitted). Plaintiff may establish that a municipality has a policy "by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policy-makers." Sorluccov. New York City Police Department, 971 F.2d 864, 871 (2nd Cir. 1992). As City defendants recognzie, a "persistent practice" (City Mem. p. 30) or "widespread pattern of violations" is actionable under 42 U.S.C. Sec.1983. Reynolds v. Giuliani, 118 F.Supp.2d 352, 364 (S.D.N.Y. 2000).

Here there has been a widespread pattern of violations. Andrea Reid s study showed that in 23 percent of the cases, ACS removed children from domestic violence victims. (Ex. 17) The state study showed that in 17 of 71 cases (24 percent), ACS removed children from domestic violence victims. (Ex. 169) OCFS claims that ACS removed one child in the sample for domestic violence only. By extrapolation, that means that OCFS removes at least 80 children a year for domestic violence only. However, given the errors in the sample, OCFS acknowledges that ACS may remove children in up to 1400 families annually. (T. 293)

Moreover, OCFS counted incorrectly. In the 71 cases studied by OCFS, ACS removed children from their mothers solely for domestic violence in at least two of the cases, the one that OCFS found and Jane Doe. ACS is wrong by 100 percent: the number is twice as high as ACS claims. Therefore, by extrapolation, ACS removes children from somewhere between 160 and 2800 families per year because of domestic violence.

City defendants state that "as this Court has repeatedly advised plaintiffs, statistical evidence is the most reliable means of proving the existence of a municipal policy and practice, whether constitutional or otherwise." (City Memo p. 23) Unfortunately for the defendants, the statistics work in plaintiffs favor.

A municipality may be held responsible for violations of constitutional rights where it has ignored repeated complaints of wrongdoing. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). Here, there have been repeated complaints about ACS mishandling of domestic violence cases. (See. e.g., T. 1744, 1851, 2019; Ex. 106) ACS has ignored those complaints.

ACS has also ignored this lawsuit. Although officials in the highest echelons of ACS are aware of the instant lawsuit, none of them have investigated to determine whether the plaintiffs grievances have merit. (T 1747, 1871, 2171, 2299) Moreover, although Deputy Commissioner William Bell claims that someone within ACS investigated to determine whether the plaintiffs grievances have merit, he did not bother to find out the outcome of that investigation. (T. 2300)

C. Constitutionally inadequate training

A municipality, or an agency, may also be held constitutionally liable based upon its failure to train its employees. Dwares v. City of New York, 985 F.2d 94 (2nd Cir. 1993); Walker v. City of New York, 974 F.2d 293, 297 (2nd Cir. 1992); Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2nd Cir. 1991). Inadequate training or supervision will trigger Sec.1983 municipal liability if "the failure to train amounts to deliberate indifference to the rights" of those with whom municipal employees will come into contact. City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1988).

"Deliberate indifference" has three criteria. Walker, 974 F.2d at 297. First, the policy-maker must know "to a moral certainty" that his or her employees will confront a given situation. Id. at 297. Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. Id. at 297. Finally, the plaintiff must show that if the wrong choice is made by a city employee, it will frequently cause the deprivation of a citizen's constitutional rights. Id. at 297.

Here, ACS defendants know that in every case of domestic violence, they must assess risk to the children. They know that in every case they must decide whether or not to remove the child from the parent. It is undisputed that child welfare investigations involving domestic violence are complex. (See, e.g., T. 693, 1418-20, 1441-42, 2436-40, 2665-66. 2669) If a caseworker makes the wrong decision about whether to remove a child, the risk is great. However, ACS does not provide its caseworkers with any training at all in making decisions as to whether to remove children from their mothers in cases involving domestic violence. See, supra, pp. 41-47. Such training readily exists and is available free of charge. Id. However, ACS refuses to take advantage of those training programs. Id. ACS likewise has failed to develop its own training programs. Id.

No ACS employee testified about what factors or criteria ACS uses to make decisions. Indeed, ACS has no criteria. The lack of criteria and lack of training cause ACS caseworkers, supervisors, and managers to make the wrong decisions in determining whether to remove children from battered mothers, resulting in a violation of the constitutional rights of both mothers and children.

POINT VIII

PLAINTIFFS CLAIMS ARE NOT MOOT

During the trial of the preliminary injunction motion, City defendants formulated various new policies for handling cases of alleged child abuse and neglect involving domestic violence. Now City defendants apparently claim that no injunction is necessary because ACS is fixing the problem. That claim is error; plaintiffs and class members need injunctive relief.

A. Voluntary cessation of illegal activity does not defeat a preliminary injunction.

The law is well settled that "a defendant s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. [I]f it did, the courts would be compelled to leave [t]he defendant . . . free to return to his old ways." Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 189, 120 S.Ct. 693, 708 (2000) (internal quotes and citations omitted). A defendant cannot prevail on a claim of mootness unless the defendant can show "that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Id. 528 U.S. at 190, 120 S.Ct. at 709; New York State National Organization for Women v. Terry, 159 F.3d 86, 91 (2d Cir. 1998).

"When defendants are shown to have settled into a continuing practice... courts will not assume that it has been abandoned without clear proof.... It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." United States v. W.T. Grant Co, 345 U.S. 629, 632 n.5, 73 S.Ct. 894, 897 n.5, 97 L.Ed.2d 1303 (1953)

B. City defendants have not ceased their illegal activity.

City defendants claim to have instituted new policies, but they have not changed their practice. ACS s response to the instant lawsuit, a series of draft policy statements, can only be "characterized as a work-in-progress." Reynolds v. Giuliani, 35 F.Supp.2d 331, 342 (S.D.N.Y. 1999). There remains a real, immediate threat to class members who have cases pending.

As proof that ACS s supposed new policies are nothing more than words on a piece of paper, the Court need look no further than the case of Sandra Determan. Ms. Determan, who testified about the removal of her daughter Dominique and ACS s ongoing prosecution of her in the Family Court for "engaging in domestic violence," has recently given birth to her second child. On October 12, 2001, two months after ACS supposedly changed its policy, ACS filed formal charges against Ms. Determan in the Family Court, alleging that she had neglected her second child B the newborn B by "engaging in domestic violence" while she was pregnant with the infant. The domestic violence allegations with respect to the newborn stem from the very same incident which formed the basis of ACS s neglect petition which it filed with regard to Dominique.

Even if the named plaintiffs claims are moot, plaintiffs "preserved the merits of the controversy for this Court s review by obtaining class certification. This Court is not deprived of jurisdiction by the fact that the class was not certified until after the named plaintiffs claims became moot." County of Riverside v. McLaughlin, 500 U.S. 44, 45, 111 S.Ct. 1661, 1664, 114 L.Ed.2d 49 (1991). City defendants have offered no proof of substantial reform or change of practice by either supervisory staff or caseworkers. Furthermore, they have asserted no intention of discontinuing unconstitutional removals, nor have they even admitted that they engaged in unlawful practices in the past.

City defendants agreement to cease using the term "engaging in domestic violence" and to initiate deliberations to reform ACS handling of domestic violence is merely "window-dressing." City defendants have articulated no plan for assuring that their employees will follow that directive. Women will continue to suffer from domestic violence. ACS has not met its burden to demonstrate that its unconstitutional practice regarding those victims will not recur.

C. The effects of the violations have not been completely and irrevocably eradicated.

Where a defendant s change in policy is prospective only, the defendant has not ceased its illegal conduct, and the controversy is not moot. Desiderio v. National Association of Securities Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999) Here, ACS continues to prosecute numerous battered mothers, in the face of the instant lawsuit. Furthermore, defendant Johnson will keep records of all indicated cases for years, rendering it virtually impossible for plaintiffs whose cases were marked "indicated" to procure employment. Plaintiffs also continue to suffer from the harmful effects of their separation from their children. Having to go to court to defend themselves and being forced by ACS to relocate, many class members have lost their jobs.

POINT IX

THE DOCTRINE OF SEPARATION OF POWERS
DOES NOT PRECLUDE INJUNCTIVE RELIEF

In their motion opposing Plaintiffs Motion for a Preliminary Injunction, City defendants claim that "family relations are a traditional area of state concern." (City Mem. p. 37) That claim is not accurate. The issue of state intervention in the family is a matter of great constitutional concern. "Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as >of basic importance in our society, " MLB v. SLJ, 519 U.S. 102, 116-117, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996) citing, Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785 (1971). The Supreme Court has repeatedly intervened in family relations matters where Federal Constitutional Rights were at stake. See e.g. MLB v. SLJ, 519 U.S. 102, 117 S.Ct. 555 (1996); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208 (1972). In addition, as recently as 1999, the Second Circuit held that if protective services removes a child without hearing, it violates procedural due process guarantees if the danger to child is not so imminent that there is reasonably sufficient time to seek prior judicial authorization for a child's removal. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. den. 529 U.S. 1098, 120 S.Ct. 1832 (2000).

Plaintiffs agree that Federal Courts "must be mindful of the balance to be preserved between federal equitable power and local administration." (City Mem. p. 37) Plaintiffs also agree that Federal courts must "tailor the scope of a remedy to fit the nature and extent of the constitutional violation. . . ." (City Mem. p. 38)

However, when a local governmental agency violates the Constitution, the federal courts must take action to stop that violation. In such a case, injunctive relief is clearly warranted. See generally, MLB v. SLJ, 519 U.S. 102, 117 S.Ct. 555 (1996).

City Defendants claim that the principle of separation of powers cautions against the Court s involvement in this case. (City Mem. pp.38-39) Defendants offer no citation for this assertion and misunderstand and misapply the separation of powers doctrine. Contrary to City defendants assertion, federal courts not only may, but must, become involved when municipalities and their employees violate the constitutional rights of individuals. Indeed, currently 27 child welfare agencies are under court supervision. (T. 2408) See, e,g., Baby Neal ex rel. Cantor v. Casey, 43 F.3d 48 (3d Cir. 1994); Charlie H. v. Whitman, 83 F.Supp.2d 476 (D.N.J. 2000).

City Defendants rely upon Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979) in support of their claim. That reliance is misplaced. Bell was a prison case, and the Supreme Court has held that courts should defer to administrative decisions by prison officials. Bell v. Wolfish, (noting that"problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgement are needed to preserve internal order and discipline and to maintain institutional security.") City defendants also rely upon Dean v. Coughlin, 804 F.2d 207, 213-16 (2d Cir. 1986), which was also a challenge to the administration of a state prison system. (City Mem. p. 38) No court

has held that states are entitled to such deference in the administration of their child welfare systems. Given the enormity of the constitutional violations in New York City s child welfare system, the importance of the constitutional rights which are at stake, and the innocence of wrongdoing on the part of the mothers and children whose rights ACS is violating, this Court should not extend to ACS the same deference that courts afford to prison systems.

Federal courts must fashion a remedy that "does no more and no less than correct that particular constitutional violation." (City Mem. p. 38) Plaintiffs agree. Plaintiffs ask only that the Court enjoin the specific constitutional violations which the evidence has identified. The Court must issue a preliminary injunction because the City is not taking corrective measures on its own. Despite the lofty sentiments contained in the paperwork, the City'simply has not changed any of its actual practices. City defendants continue to prosecute battered mothers in the Family Court, charging them with child neglect for "engaging in domestic violence" in the presence of the children, even as they issue memoranda telling their employees to stop the practice. (See Def. Ex. MMM) The prosecutions continue unabated because City defendants have not instructed their staff to withdraw any pending prosecutions. As City defendants counsel admitted on August 30, 2001, ACS has not actually acted on the above mentioned Memorandum. (Tr. 2632) Thus, those battered mothers and children who came to the attention of ACS prior to August 14, 2001, the date of the memorandum, will continue to be victimized by ACS, even if ACS stops commencing new cases. Still being prosecuted for "engaging in domestic violence" are members of plaintiff class Sandra Determan, Jessica Valentin, Crystal Rhodes, Olga Urena, Michelle Norris, and Xiomara C., plus numerous others. As long as ACS continues to prosecute those mothers, and continues to threaten the mothers with the loss of their children, ACS proves that it will not voluntarily change its unconstitutional practices.

City defendants claim that the Casey Advisory Panel has given ACS a clean bill of health. (City Mem. p. 39) They ignore the fact that the Casey Panel did not review the child protective services department at ACS. (Tr. 2573) The Casey panel also did not evaluate ACS efforts with regard to domestic violence. (Exhibit 124) (Tr. 2557-58)

ACS is simply not making the changes that it needs to make to the unconstitutional manner in which it handles child protective investigations involving domestic violence. ACS is capable of making the changes. For a short period of six months B from July 1 through December 31, 1999 B in a small geographic area B Zone A of Manhattan B ACS did the right thing. During the Zone A project, ACS removed children from battered mothers in only 5 out of 177 cases, less than three percent of the time. By contrast, in the Brooklyn field office, ACS caseworkers removed children in 23 percent of the cases involving domestic violence during the same time period. (Exhibit 17, DCP Domestic Violence Evaluation) Moreover, citywide, ACS removed children in 24 percent of the cases involving domestic violence (17 out of 71 cases), during the same time period. (Exhibit J; Ex. 169)

The Supreme Court considers state infringement on family relationships very differently. As noted above, the Court will strictly guard against undue official intrusion into the family. MLB v. SLJ, 519 U.S. 102, 116, 117 S.Ct. 55, 563-64 (1996). Choices about marriage, family life and the upbringing of children are among associational rights that the Supreme Court of the United States has ranked "of basic importance in our society." MLB, 519 U.S. at 116, 117 S.Ct. at 563-64. "[T]he interests of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment." MLB, 519 U.S. at 116, 117 S.Ct. at 563-564 citing, Santosky, 455 U.S. at 774, 102 S.Ct. at 1405. In the case at bar, the local government, ACS, seeks to infringe on important fundamental rights, namely a domestic violence survivor s rights to the care and custody of her children. A federal court may issue an injunction where ACS encroaches on those rights.

City defendants claim that the plaintiffs "would literally preclude child protective services employees from even considering the existence of domestic violence in determining what outcomes are best for children." (City Mem. p. 40) City defendants seriously misunderstand plaintiffs claims. Almost all plaintiff mothers have come forward seeking assistance from their government because they have been battered. Some, like plaintiff Sharwline Nicholson, Jessica Valentin, Michelle Norris and April Rodriguez, have sought the assistance of the police and the criminal justice system. Others, like Sharlene Tillett and Crystal Rhodes have sought or requested the assistance of the Family Court in obtaining orders of protection. Others, including Ekaete Udoh, have asked ACS directly for help with their batterers. (Ex. 85) In response, ACS routinely ignores the batterers and holds the mothers responsible for the battering, by charging the mothers with child neglect and by removing the children from the mothers. (Exhibits 4a., 88, 91a., 91b, 91c, 102, 107a, 159, 160, 161, 222, 231, 244) Those removals and prosecutions harm both mothers and children.

POINT X

THE COURT SHOULD NOT ABSTAIN

A. Younger abstention is not appropriate

While federal courts should not generally enjoin state proceedings, when the state proceeding is in bad faith, the federal courts have the power to intervene. Younger v. Harris, 401 U.S. 37, 53, 91 S.Ct. 746, 755, 27 L.Ed.2d 669 (1971). According to the Supreme Court, "'bad faith' in this context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction." Kugler v. Helfant, 421 U.S. 117, 126 n.6, 95 S.Ct. 1524, 1531 n.6, 44 L.Ed.2d 44 (1975).

There is ample evidence that the defendants acted in bad faith as defined by the Supreme Court. Both Commissioner Scoppetta and Nat Williams testified that ACS removes children and, at times, files neglect proceedings against battered mothers to force the mothers to follow ACS directives. (T. 851-53; 2532) When an action is commenced to pressure or compel an individual to act in accordance with governmental objectives, without any reasonable expectation that the government will prevail on the merits of the action, federal courts should not abstain. Brooklyn Institute of Arts and Sciences v. City of New York, 64 F.Supp.2d 184, 196 (E.D.N.Y. 1999). City defendants coercive tactics and malicious filings of family court proceedings against the mothers class demonstrates that City defendants acted in bad faith.

Courts have held that, when "arrests and seizures were made despite state and federal court rulings that the procedures used were invalid," it is clear evidence of bad faith. Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297, 1305 (S.D.N.Y. 1977). In the case at bar, witnesses for the defendant admitted that they would remove children from the plaintiff mothers even when there was either no emergency circumstances or time to get a court order. (T. 195-98, 452-54, 852-54) City defendants employed that practice despite a clear edict from the Second Circuit that such removals were unconstitutional unless there was such a dire emergency that there was no time to secure a court order. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. den. 529 U.S. 1098 (2000).

Another instance of bad faith, justifying a federal court from enjoining ongoing state prosecutions, is when prosecutors continue to bring and try cases that are nearly identical to those in which they have often failed to get a conviction. See Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972). In the case at bar, defendants have shown bad faith by continuing prosecutions not only after mothers have been found non-neglectful, but when their own officials have sent a memorandum to the staff stating the reason for prosecuting the woman is invalid. See Exhibit ?? In addition to prosecutions brought in bad faith, Younger also recognized an exception to the abstention doctrine for Aa series of repeated prosecutions." Younger, 401 U.S. at 49, 91 S.Ct. at 753-55; Schlagler v. Phillips, 166 F.3d 439 (2d Cir. 1999); Phelps v. Hamilton, 59 F.3d 1058, 1065 (10th Cir. 1995). In case at bar, the defendants continually prosecute the plaintiffs on charges that are constitutionally invalid. At trial, defendants expert showed that there was at least 80 cases annually in which ACS removes children from their battered mothers solely because of domestic violence. In all of those cases, ACS was required to file neglect proceedings in the Family Court by the next business day, charging the mothers with child neglect. N.Y. Fam. Ct. Act '1024(b)(iii). This Court can and should stop ACS from persisting in prosecuting the battered mothers.

Finally, ACS is continuing the prosecutions of members of the plaintiff class in bad faith. When a government official prosecutes an individual in retaliation for the individual s exercise of her constitutionally protected conduct, the Court should not abstain. Cullen v. Fliegner, 18 F.3d 96 (2d Cir. 1994). A claim will lie "where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws." Friedl v. City of New York, 210 F.3d 79, 86 (2d Cir. 2000); Samuels v. Mockry, 142 F.3d 134, 137 (2d Cir. 1998). Individuals have a constitutional right to petition for redress of grievances, guaranteed by the First Amendment, a right which includes the right to unfettered access to the courts. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611-12, 30 L.Ed.2d 642 (1972); see also, Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir. 1995) (individual has the "right not to be subjected to false... charges as retaliation for his exercise of a constitutional right such as petitioning the government for redress of his grievances.... ") When the government retaliates against an individual for exercising her constitutional right of access to the courts, the government has acted in bad faith and violated that individual s constitutional rights. Here, class members Determan, Rhodes, Urena, Norris, and Valentin are still the subject of ongoing neglect cases in the Family Court. They remain threatened with the loss of their children while ACS continues to prosecute them for child neglect. They have exercised their First Amendment right of access to the courts, by filing the instant lawsuit.

Because the mothers have filed the lawsuit, ACS refuses to withdraw the Family Court cases against the mothers. ACS has bluntly admitted that ACS will not even consider whether they might have made a mistake in prosecuting the mothers because the instant lawsuit is pending. (T. 1871) Continuing to prosecute a mother for neglecting her children when there is no basis to do so, and refusing to investigate whether grounds exist to continue the prosecution is, quite simply, retaliation. This Court can and should enjoin the City from retaliating against plaintiff mothers by continuing to prosecute them without any regard for the merits of the continued prosecutions.

Plaintiff mothers cannot simply wait for the Family Court to vindicate them. In its March 9, 2000, Report, the Casey panel presented an insightful description of the Family Court. (Ex. 124, pp. 44-52) The Report shows three clear reasons why mothers cannot rely upon the Family Court. First, there is an inordinate delay in proceedings, which stretch out for months and even years. In many cases, their children have been removed without a hearing and they must wait days and weeks before obtaining a hearing for the return of their children. Even when the children are returned, the mothers are under constant pressure and anxiety about their cases. During this time, the mothers are subject to control of their lives by ACS, are subject to announced and unannounced home visits and inspections, and must take time off from work, school, or child care to attend numerous court appearances.

Second, many mothers will not have adequate representation to present their cases and defend them. The failings of the 18-B panel are described more fully elsewhere in this Memorandum. Third, some Family Court judges feel that they lack the power to tackle ACS. This Court should enjoin ACS from initiating and continuing prosecutions against mothers who are victims of domestic violence.

B. Rooker-Feldman does not bar consideration

The City claims that the Rooker-Feldman doctrine somehow prohibits this Court from considering plaintiffs claims because ACS obtained court orders temporarily remanding some of the child class members to the custody of ACS. (City Mem. p. 27, n. 8) In support of that claim, City defendants cite an unpublished decision of the Second Circuit, contrary to Rule 0.23 of the Second Circuit. City defendants claim is without merit.

The Rooker-Feldman doctrine prohibits federal courts from sitting as appellate tribunals in review of state court decisions. The doctrine "means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding... subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Rivers v. McLeod, 252 F.3d 99, 101 (2d Cir. 2001), quoting Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir.1996). Where an issue was not litigated in the state proceeding, Rooker Feldman does not apply. Rivers, supra, at 101.

In the cases of all class members, ACS has returned the children whom they seized. In some cases, the Family Court judges immediately ordered the return of the children. In other cases, where ACS obtained court orders ex parte, Family Court judges ordered the return of the children when the mothers appeared in court and presented the facts which ACS had failed to present in obtaining those orders.

Under New York law, a Family Court order which has expired is not appealable. Matter of Maxwell B., 269 A.D.2d 444, 703 N.Y.S.2d 210 (2d Dept. 2000). Therefore, City defendants claim that the mothers could have appealed the Family Court removal orders is inaccurate. Likewise, orders issued ex parte are not appealable. Rebeil Consulting Corp. v. Kappa Realty Corp., 244 A.D.2d 540, 664 N.Y.S.21d 617 (2d Dept. 1997). In the cases of all the plaintiff mothers who have testified in this Court, where Family Court judges ordered children to be separated from their battered mothers, those orders have been vacated or allowed to expire.

The Rooker-Feldman doctrine is analogous to the federal doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion). See, Hachamovitch v. DeBuono, 159 F.3d 687, 695 (2d Cir. 1998). One key prerequisite of collateral estoppel is the availability of appellate review. "If a party has not had an opportunity to appeal an adverse finding, then it has not had a full and fair opportunity to litigate that issue." Johnson v. Watkins, 202 F.3d 792, 795 (2d Cir. 1996). Here, as in Johnson, plaintiff mothers had no opportunity to appeal from interim orders of the Family Court, because those orders have all been vacated.

Moreover, plaintiff mothers do not challenge any order of the Family Court. Rather, plaintiff mothers challenge City defendants policy and practice of removing children from their battered mothers without legal basis and without due process of law. It is those removals which violate the Constitution, and not temporary orders which Family Court judges may have issued, based upon incomplete, false, and/or misleading information.

The Rooker-Feldman doctrine is likewise inapplicable because the New York Family Court is a court of limited jurisdiction, which "has the power to entertain only those applications that are specifically enumerated in the New York State Constitution or an applicable statute.". King v. State Education Department, 182. F.3d 162, 163 (2d Cir. 1999). The Family Court does not have the power to hear claims for injunctive relief, nor does it have the power to hear class actions. See, e.g., People United for Children, 108 F. Supp. 2d 275 (S.D.N.Y. 2000). Accordingly, Rooker-Feldman does not bar consideration of plaintiff mothers claims.

POINT XI

THIS COURT SHOULD AWARD INTERIM ATTORNEYS FEES

A. Plaintiff mothers are entitled to an interim award of attorneys fees

In enacting 42 U.S.C. Sec.1988, "Congress authorized an award of counsel fees pendente lite when a party has established entitlement to some relief on the merits or has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all the issues." Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980). The Court stated that an interim award of counsel fees would be appropriate when there had been a determination of "substantial rights of the parties." Id. Both the Second Circuit and other circuits have found that a preliminary injunction is an affirmative finding that entitles the moving party to attorney s fees. See Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997) (fees are appropriate as long as the injunction is based on the merits); Conservation Law Foundation of New England, Inc. v. Secretary of Interior, 790 F.2d 965, 968 (1st Cir. 1986) ("a preliminary injunction is not a mere procedural order; it contains an affirmative finding of likelihood of success, entitled to weight"); Harris v. McCarthy, 790 F.2d 753, 757 (9th Cir. 1986) ("In accordance with the typical formulation of prevailing plaintiff inquiry, they succeeded on a significant issue in the litigationBi.e., whether they were entitled to injunctive reliefBand achieved some of the benefit they sought in bringing suit."[internal quotations omitted]); Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 765 F.2d 1278 (5th Cir. 1985); Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), cert. denied, 101 S.Ct. 1723, 450 U.S. 1012, 73 Led.2d 1395 (1981), see also, Hastings v. Maine-Endwell Central School District, New York, 676 F.2d 893 (2d Cir. 1982) (Second Circuit dismissed the appeal of the District Court s award of interim attorney s fees to the plaintiff that was based on the attainment of a preliminary injunction because the Court had no jurisdiction over the matter at that time).

B. Plaintiff mothers are entitled to an upward enhancement of their fees

When a plaintiff files a fee application under 42 U.S.C. Sec.1988, the starting point for determining the amount of fees is the number of hours expended by the attorneys multiplied by a reasonable hourly rate, an amount known as the loadstar. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983). Although the Supreme Court has created "a strong presumption that lodestar figure represents reasonable attorney[>s] fee in civil rights case[s], other considerations may lead to upward or downward departure from lodestar." Grant v. Maritinez, 973 F.2d 96 (2d Cir. 1992); see, Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Pennsylvania v. Delaware Valley Citizens Council, 483 U.S. 711, 107 S.Ct. 3078, 97 Led.2d 585 (1987); City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (stating that upward adjustments are inappropriate solely due to a case being taken on a contingency basis). The considerations which justify upward enhancements or multipliers of the lodestar amounts, which have survived the Supreme Court s limitations, are: unlikeliness of other qualified attorneys taking the case, see Guam Society of Obstetricians and Gynecologists v. ADA, 100 F.3d 691 (9th Cir.1996), quality of the results obtained, Shipes v. Trinity Industries, 987 F.2d 311, 323 (5th Cir. 1993), cert. denied, 510 U.S. 991, 114 S.Ct. 548, 126 L.Ed.2d 450 (1993), the size and circumstances of the attorney s practice and whether the case is of broad public interest, Chalmers v. City of Los Angeles, 676 F.Supp. 1515, 1522 (C.D. Cal. 1987), where some of the claims were "real risk-of-not-prevailing issues", Unites States v. Anesthesia Associates of Burlington, 87 F.Supp.2d 351, 359 (D. Vt. 2000), and the issue being litigated is "groundbreaking". Quinn v. Nassau County Police Department, 75 F.Supp.2d 74 (E.D. N.Y 1999).

In reviewing the issue and circumstances involved in the case at bar, not just one of the aforementioned justification for an upward enhancement is present, but, in fact, they all are applicable. First, it is evident that the plaintiffs would have found it virtually impossible to obtain other qualified counsel to represent them before this Court. The evidence has shown that, for many years, the defendants have engaged in unconstitutional conduct in handling child abuse and neglect investigations involving battered mothers. Plaintiffs counsel in this case are the first attorneys to step forward and challenge the conduct. In addition, it would be near impossible to fathom that the plaintiffs could have obtained other counsel that had the requisite experience in dealing with combination of issues that are present in this case, i.e. domestic violence, family court procedure, state administrative procedures, civil rights law, constitutional law and federal civil procedure. Further evidence of the lack of competent counsel willing to handle this case was seen when this Court advertised to find counsel to represent the batterers interest. As this Court is aware, no attorneys came forward.

The results obtained by counsel for the plaintiffs in this case are substantial. Plaintiffs have proven that ACS has deprived hundreds, if not thousands, of battered mothers and their children of their constitutional rights. Plaintiffs counsel has organized the claims of these individuals and obtained class certification so that the mothers and children could attack the problems at the source. Plaintiffs counsel has brought to the fore the issue of domestic violence, which ACS has neglected for too long. Finally, because plaintiffs filed the instant action, and because of the level of success that plaintiffs achieved, battered mothers can now seek the help and services they need without fearing that ACS will removed their children. As this Court noted, "representing the plaintiffs two classes [are] excellent attorneys who have done a superb job here in presenting this information." (T. 2603)

In bringing to light the widespread problem at issue in the case at bar, plaintiffs counsel had the following resources: Lansner & Kubitschek, a six-attorney law firm and Jill Zuccardy, an attorney from Sanctuary for Families Center for Battered Women s Legal Services. Lansner & Kubitschek, a private public interest law firm, dedicated nearly all of its possible resources to this matter, while at the same time managing its active caseload of 250 cases, many of which are pro-bono family court cases. Sanctuary for Families, a not-for-profit social services and shelter organization with eleven attorneys and an active case load of more than 650 cases, dedicated Ms. Zuccardy, the agency s legal services coordinator and a supervising attorney, to work almost exclusively on this litigation. Ms. Zuccardy s responsibilities of coordinating legal services and providing legal counseling for shelter and clinical clients, conducting intake, recruiting and supervising pro bono attorneys from large law firms, representing individual clients and supervising junior staff were all deferred. Sanctuary for Families supports itself through grants, foundations, federal and state funding, which rely heavily upon number of clients served and number of pro bono attorneys recruited in determining funding levels; the diversion of Ms. Zuccardy s attention from her regular tasks to this lawsuit represented a substantial commitment by the agency and foreclosure of funding opportunities. Even with these limited resources, plaintiffs counsel were able, in a matter of months, to complete discovery, take numerous depositions, prepare for trial, join the State of New York as a party, move for class certification, move for a preliminary injunction against the City of New York and then the State of New York, oppose the State of New York s motion to dismiss, conduct a six-week trial, and prepare post-trial memoranda.

Plaintiffs counsel s success and work output is even more impressive when one considers that they were litigating against the city of New York, which has 700 lawyers at its disposal and unlimited resources. In Chalmers, supra, the "undesirability of litigating against the City" due to the "unlimited amount of time and money" that the City was able to expend on a case, was a major factor in the court s decision to award fees in an upward modification of the loadstar amount. Chalmers, supra, 676 F.Supp. at 1524. In addition, as discussed supra in Points II, III, and IV, plaintiffs counsels actions affected the broad public interest.

Finally, plaintiffs claims were unique and complicated and the results obtained were groundbreaking. As this Court noted "[a]t the moment, it is enough merely to point out the complexities of the case. Myriad federal, state and municipal statutes and regulations are implicated." 2001 WL 951716 *3. In addition, this Court noted on the record that the issues raised in this case involve a citywide problems that has not been addressed in over four years. (T. 2601) As illustrated by the submission of briefs amicus curiae from organizations throughout the United States, the issues raised are also of national concern. Plaintiffs counsel dealt with and presented each of these complexities with great dexterity, thereby allowing this Court to correct the widespread problems that have arisen from the defendants unconstitutional policies and practices in dealing with the issue of domestic violence.

Plaintiffs counsel are entitled to an upward modification of their lodestar.

CONCLUSION

For all the foregoing reasons, adult plaintiffs and members of Subclass A respectfully request that this Court issue an order:

1. Declaring unconstitutional City defendants policy and/or practice of removing and detaining members of subclass B from the custody of members of subclass A; and

2. Enjoining City defendants from removing and detaining members of subclass B from members of subclass A; and

3. Declaring unconstitutional City defendants policy and/or practice of removing and detaining members of subclass B from the custody of members of subclass A without following the requirements regarding prior notice and hearings set out by the Second Circuit Court of Appeals in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999); and

4. Enjoining City defendants from removing and detaining members of subclass B from the custody of members of subclass A without following the requirements regarding prior notice and hearings set out by the Second Circuit Court of Appeals in Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999); and

5. Enjoining City defendants from applying for orders to remove members of subclass B from the custody of members of subclass A without giving members of subclass A prior notice of such applications and of the right to be present at court to oppose such applications and of the right to counsel at such applications; and

6. Declaring that City defendants policy of removing members of subclass B from the custody of members of subclass A without investigating whether members of subclass B will be in danger if they remain with members of subclass A is unconstitutional; and

7. Enjoining City defendants from removing members of subclass B from the custody of members of subclass A without investigating whether members of subclass B will be in danger if they remain with members of subclass A; and

8. Declaring that City defendants policy or practice of detaining members of subclass B in government custody without investigating whether members of subclass B will be in danger if they return to the custody of members of subclass A is unconstitutional; and

9. Enjoining City defendants from detaining members of subclass B in government custody without investigating whether members of subclass B will be in danger if they return to the custody of members of subclass A; and

10. Declaring that City defendants policy of delaying the release of members of subclass B from foster care to the custody of members of subclass A for the purposes of conducting medical examinations of members of subclass B is unconstitutional; and

11. Enjoining City defendants from delaying the release of members of subclass B from foster care to the custody of members of subclass A for the purposes of conducting medical examinations of members of subclass B, unless the examinations are medically necessary; and

12. Declaring unconstitutional those portions of ACS s Mission Statement and Operating Principles which provide that:

a. "any ambiguity regarding the safety of the child will be resolved in favor of removing the child from harm s way"; and

b. "Only when families demonstrate to the satisfaction of ACS that their homes are safe and secure will the children be permitted to remain or be returned to the home"; and

13. Enjoining City defendants from instructing ACS staff in said portions of ACS s Mission Statement and Operating Principles to ACS staff; and

14. Directing City defendants to delete said portions of ACS s Mission Statement and Operating Principles from all written documents and training materials; and

15. Declaring that City defendants policy or practice of shifting the burden to members of subclass A to prove that members of subclass A will not be battered in the future, before defendants agree to return members of subclass B to the custody of members of subclass A is unconstitutional; and

16. Enjoining City defendants from shifting the burden to members of subclass A to prove that members of subclass A will not be battered in the future, before defendants agree to return members of subclass B to the custody of members of subclass A; and

17. Ordering City defendants to provide training to all ACS caseworkers, supervisors, child protective managers, field office directors and deputy directors, and Division of Legal Services staff on:

a. investigating child abuse and neglect cases involving custodians who are victims of domestic violence; and

b. determining whether probable cause exists to remove or detain children whose custodians are domestic violence victims, i.e., whether there exists probable cause to believe that continuing in the care of their custodians presents an imminent danger to the children s life or health; and

c. assessing danger to children whose custodians are domestic violence victims; and

d. the unconstitutionality of removing a child from a custodian because of alleged emotional trauma to the child, when the removal will cause more trauma to the child than the potential trauma caused by remaining with the custodian; and

e. balancing the emotional trauma of removing a child from the custody of a parent against the possible emotional trauma of leaving the child in the home; and

f. providing notice and an opportunity to be heard prior to the removal of children unless the danger to the children s lives or health is so immediate that there is no time to seek a court order; and

g. providing notice and an opportunity to be heard promptly after removal of the children in situations where City defendants have removed children without court orders; and

h. the constitutional rights of domestic violence victims and their children in child welfare investigations; and

18. Directing City defendants to revise their policy statement, training materials, memoranda, Casework Practice Guide, Domestic Violence Guiding Principles to reflect the foregoing; and

19. Directing City defendants to provide sufficient space in domestic violence shelters for all members of subclass A who want and qualify for shelter space; and

20. Enjoining City defendants from prohibiting members of subclass A whose children have been removed from their custody from being housed in the City s domestic violence shelters; and

21. Ordering City defendants to provide sufficient space in domestic violence shelters for members of subclass A whose children been removed from their custody and placed in foster care, and whose children will be able to reunite with members of subclass A if members of subclass A go to live in shelters; and

22. Enjoining City defendants from filing petitions under Article Ten of the New York Family Court Act against members of subclass A unless City defendants have an independent basis for charging members of subclass A with child neglect, other than domestic violence; and

23. Enjoining City defendants from filing petitions under Article Ten of the New York Family Court Act which allege that victims of domestic violence have "engaged in domestic violence"; and

24. Enjoining City defendants from filing petitions under Article Ten of the New York Family Court Act alleging that a member of subclass A has failed to protect the child from witnessing domestic violence as a ground for neglect on the part of said victim; and

25. Enjoining City defendants from continuing with the prosecution of any pending petitions under Article Ten of the New York Family Court Act against members of subclass A; and

26. Enjoining City and State defendants from marking or determining reports of suspected child abuse or maltreatment against member so subclass A as "indicated" with the New York State Central Register of Child Abuse and Maltreatment; and

27. Directing City defendants, when a member of subclass A requests placement for herself and her children in a domestic violence shelter, to make arrangements for the immediate placement of the member of subclass A and her children in a domestic violence shelter, enjoining defendants from requiring the member of subclass A to make such arrangements on her own, and further directing that in the event a domestic violence shelter is not available for such mother and children, immediately placing the member of subclass A and children in a hotel or furnished apartment at City defendants expense, and further enjoining City defendants from placing or referring the member of subclass A and her children to a homeless shelter; and

28. Declaring unconstitutional City defendants policy of prohibiting members of subclass A from bringing counsel of their choice to proceedings and conferences before the Administration for Children s Services; and

29. Enjoining City defendants from barring members of subclass A from bringing counsel of their choice to proceedings and conferences before the Administration for Children s Services; and

30. Ordering that, in cases in which City defendants determine that a member of subclass B is in danger because of the actions of a batterer, City defendants shall immediately contact the New York Police Department, which shall determine whether there is probable cause to arrest the batterer; and if there is probable cause to arrest the batterer, and if arresting the batterer would enable the member of subclass B to remain safely in the custody of a member of subclass A, the New York City Police Department shall arrest the batterer; and

31. Enjoining City and State defendants from determining that allegations of child maltreatment are "indicated" as to members of subclass A; and

32. Declaring that State and City defendants are obligated under the United States Constitution and the constitution and laws of the State of New York to ensure that qualified counsel are available and able to provide meaningful and effective representation to members of subclass A in child protective proceedings in the New York Family Court; and

33. Ordering State and City defendants to provide sufficient funding to assigned counsel in order to ensure adequate representation of members of subclass A in child protective proceedings in the New York Family Court; and

34. Declaring that those portions of N.Y. County L. Sec.722-b, N.Y. Fam. Ct. Act Sec.245, and N.Y. Judiciary L. Sec.35 which establish hourly rates and maximum compensation for assigned counsel are unconstitutional as a violation of the right to counsel and the right to due process of law with regard to the members of subclass A; and

35. Ordering State defendants to raise the rate of compensation for assigned counsel, to remove the ceiling on compensation, and to eliminate the differential rates for work performed in court and out of court with regard to representation of members of subclass A;; and

36. Declaring that State Defendants arbitrary limitations on the use of funds for compensating experts, provided by N.Y. County L. Sec.722-c, on behalf of members of subclass A is unconstitutional; and

37. Enjoining State defendants from restricting or limiting the funding available under N.Y. County L. Sec.722-c for compensating experts for members of subclass A; and

38. Declaring that State defendants, by failing to make sufficient resources available to enable the Family Court to provide immediate post-deprivation hearings to parents and children in child protective proceedings, and to provide prompt trials on the merits of said proceedings, are in violation of the Due Process Clause of the United States Constitution; and

39. Enjoining State defendants from failing to make sufficient resources available to enable the Family Court to provide immediate post-deprivation hearings to parents and children in child protective proceedings, and to provide prompt trials on the merits of said proceedings, are in violation of the Due Process Clause of the United States Constitution; and

40. Enjoining State defendants from reimbursing City defendants for any activities which City defendants perform in violation of this order; and

41. Awarding plaintiff and members of subclass A interim attorneys fees, pursuant to 42 U.S.C. Sec.1988, in the sum of $1,827,917.30; and

42. Granting such other and further relief as this Court may deem just and proper.

Dated: New York, New York,

October 22, 2001

__________________________________

CAROLYN A. KUBITSCHEK (CK6415)
LANSNER & KUBITSCHEK
Attorney for Plaintiffs
325 Broadway
New York, New York 10007
(212) 349-0900

 ____________________________

JILL M. ZUCCARDY (JZ3276)
Sanctuary for Families Center for Battered
Women's Legal Services
67 Wall Street, Suite 2211
New York, New York 10005
(212) 349-6009
Attorneys for Plaintiffs