American Bar Association Commission on Domestic Violence
Article: The Nicholson Decisions
New York’s Response to ‘Failure to Protect’ Allegations
“it became abundantly clear that the Nicholson, Udoh, and Tillet cases were not aberrations but rather the result of a burgeoning City policy of removing children from battered mothers and prosecuting the mothers for child neglect—a policy that was based on a misguided interpretation of state law and an indifference to federal constitutional law.”
. . . . The City claimed . . . that the potential for emotional harm to a child from witnessing domestic violence was so high, that ACS could do away with the requirement of a court order—that is, the requirement of due process—and simply remove children wherever domestic violence was found. Unfortunately, in a series of decisions containing nothing more than a few sentences, other New York appellate courts appeared to adopt the per se standard as well.
At this time, battered mothers in other states were facing the same problems, biases, and punitive practices as faced by battered mothers in New York City. In other jurisdictions, these were called “failure to protect” cases. Battered mothers were charged with failing to protect their children from the potential emotional or physical harm of being exposed to violence. But New York City phrased its neglect charge in a different way: a battered mother is per se neglectful because she is “engaging in domestic violence in the presence of her children.” In choosing the language “engaging in domestic violence” to describe a victim’s role in an assault upon her, the City said very clearly what many other jurisdictions were saying obliquely: that the victim was equally responsible for the violence in the home. The City used this approach to justify removing children from victim-mothers Nicholson, Udoh and Tillet, and hundreds of other mothers similarly situated. . .
[Lawsuits were filed and]. . Plaintiffs alleged that they were being deprived of both substantive and procedural due process, and that their children were being removed based on constitutionally inadequate investigations, without probable cause and absent training and supervision. Plaintiff-mothers alleged violation of their First and Fourteenth Amendment rights, with the children suffering additionally from a deprivation of their Fourth Amendment right to be free from unlawful search and seizure.
. . . At the conclusion of trial, the District Court held that the City’s practices and policies were unconstitutional. Shortly thereafter, the District Court issued findings of fact and conclusions of law, explaining the court’s reasoning underlying the preliminary injunction. Harshly criticizing the City’s practices, the court noted that “children’s welfare, the state interest which is so often the great counterweight deployed to justify state interference in family affairs, has virtually disappeared from the equation in the case of [the City’s] practices and policies regarding abused mothers.” The court made specific factual findings with regard to the City’s current policy and practice in child welfare cases involving domestic violence:
As a matter of law, the Court held that the City’s actions violated the Fourteenth Amendment, by intruding upon the liberty right to familial integrity enjoyed by both mothers and children without substantive and procedural due process. The City’s actions also violated the children’s Fourth Amendment right to be free from unreasonable seizure, and the Ninth, Thirteenth and Nineteenth Amendment rights of all parties. The court held that a battered mother is entitled to equal protection of the law and that “separating her from her children merely because she has been abused—a characteristic irrelevant to her right to keep her children—treats her unequally from other parents who are not abused.”
The article discusses the appeal and outcome of the case and summarises implications of the case in other jurisdictions:
“Failure to protect” cases rest upon a tacit assumption that somehow battered mothers consent to being beaten, assaulted, and injured in the presence of their children.
CPS also may presume that a battered mother who does not enter a domestic violence shelter or otherwise relocate is failing to exercise a minimum degree of care. However, relocating is frequently not in the best interests of the child. Even in cases where relocating is in the child’s best interests, there is a critical shortage of domestic violence shelters. Further, many women who try to relocate cannot find permanent housing, and there is “no guarantee that there may be adequate resources available to meet the needs of her children.”
CPS and courts also frequently consider, as a litmus test for neglect, whether a battered mother successfully ended the relationship. As the District Court found, “the process of extrication from a violent relationship often takes time, through a series of separations and ‘seeming’ reconciliations.” A battered mother engaged in the process of extrication cannot be said to have failed to exercise a minimum degree of care.
Moreover, separation does not equal safety. Leaving is not an appropriate safety plan for many mothers because it actually may increase danger to the mothers and children. As the District Court found, “even if a battered mother wants to free herself from the abusive relationship immediately, this is not always a viable option. The most dangerous time appears to be immediately after she leaves the batterer. His threats will make her aware of this jeopardy.” The media is replete with examples of cases in which a battered mother was killed after she left or because she left.
In Nicholson, both the federal and state courts wrote excellent decisions analyzing and dispelling many of the myths that inform child protective services intervention in child welfare cases.
The best way to use Nicholson in other jurisdictions is to use it. Cite to it. Examine the reasoning and adopt it!