Monthly Archives: April 2009

Battered women charged with “failure to protect”

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:

  • ACS regularly alleges and indicates neglect against battered mothers;
  • ACS rarely holds abusers accountable;
  • ACS fails to offer adequate services to mothers before separating them or removing their children;
  • ACS regularly separates battered mothers and children unnecessarily;
  • ACS fails to adequately train its employees regarding domestic violence;
  • ACS’ written policies provide insufficient and inappropriate guidance to employees.
  • 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!

    Complete article

    Teen Date Violence: State Report Cards

    Break the Cycle: State Report Cards on Teen Date Violence

    Break the Cycle presents the 2009 State-by-State Teen Dating Violence Report Card.

    Teens across the country face overwhelming obstacles to accessing help for domestic and dating violence, particularly civil domestic violence protection orders.

    In 2008, Break the Cycle conducted a nationwide review of each state’s civil domestic violence protection order laws and their impact on teens seeking protection from abusive relationships. The results were reported in the 2008 State-by-State Teen Dating Violence Report Card.

    The results are updated as of April 2009.

    Report for Colorado:

    Each state has different requirements for getting a civil domestic violence protection order. Because it makes protection orders extremely difficult for teens to obtain, Colorado’s grade for protecting teen victims of domestic and dating violence is a D.

    Law Enforcement Training in Holyoke

    A POST certified training for law enforcement officers in the 13th Judicial District will be held at the Phillips County Resource Center, 127 E. Denver, in Holyoke, Thurs., April 30 from 8:30 a.m. to 4:30 p.m. Registration begins at 8:00 a.m.

    Domestic Violence: The Law Enforcement Response is a one-day class that provides eight continuing education Colorado POST (Peace Officer Standards and Training) credit hours to eligible participants who complete the class. Also invited to attend are members of area victim advocacy programs.

    Trainers are Detective Dave Kallweit, Morgan County Sheriff’s Office, Officer Jake Fajardo, Morgan County Sheriff’s Office, and Yolanda Morales-Leon, SHARE, Inc. Kallweit has been with the Sheriff’s Office for 11 years. For the past two years he has been the Specialized Domestic Violence Investigator funded through SHARE’s Office of Violence Against Women Rural Grant. He is SWAT certified and has completed trainings on Advanced Domestic Violence and Sexual Assault Response and Enhancing Collaborative Responses to Sexual Violence. Fajardo has also been part of the law enforcement training team since 2006 and specializes in the area of domestic violence issues and constitutional law. Morales-Leon has co-facilitated the law enforcement training for the last two years. She has been associated with SHARE, Inc. since 2000, and has worked as an advocate in the area of outreach and court advocacy as well as community education.

    The class is presented through a Rural Violence Against Women Grant administered by SHARE, Inc., a domestic violence program based in Morgan County. The Victim Assistant Program of Phillips and Sedgwick Counties is assisting with organizing and publicity for the training.

    What’s wrong with this headline?

    Let’s play “What’s Wrong with This Headline?”


    OK, kids–here’s today’s challenge: “Couple, their 3 kids found dead in Maryland home.”

    Who or what might have killed an entire family? Was it carbon monoxide? Botulism? World War II ordinance discovered in the sandbox too late? (I’m humming the Jeopardy theme while you click and read.)

    Time’s up!

    If I were the grandparent who discovered my daughter and grandchildren murdered by my son-in-law, I sure as heck wouldn’t like the news dubbing the murderer and my daughter a “couple,” and the senseless slaughter of my grandchildren as being “found dead” instead of “murdered by their father.”

    This is yet another sickening example of the news media doing the work of our culture in erasing or obscuring the deadly combination of modal American masculinity and gun violence! But shhhhhh! We can’t talk about that–it’s against the Bill of Rights! The Second Amendment trumps the First Amendment every time. We can’t write the headline like this: “Man Murders Wife, his 3 Children with Firearm.” Guns don’t kill people–men kill people, especially the people they’re most closely related to, and they just so happen to choose guns because of their extraordinary efficiency when used in murderous rampages.

    Where are the articles about this disturbing epidemic of violent husbands and unnatural fathers? (Just imagine if one or two women in this country every week gunned down their husbands and children. Just imagine the headlines, the non-stop media coverage, and the endless analysis if it happened even once!) Why isn’t this considered a national public health emergency? Where are the ad campaigns encouraging people not to keep guns in their homes, and urging men to seek counseling if they take their anger out on their family members? (Hey–it’s worked so far with drunk driving and smoking–maybe not so much with the anti-drug campaigns.) Where is the leadership by men in our communities to model masculinities based on respect and care for othes rather than the control of other people? I wonder if we are naturalizing this extreme form of male violence because it’s one of the few achievements that women have shown little interest in as of yet–unlike education, politics, medicine, the law, and so on.

    Coverture isn’t dead, and some men are willing to kill to prove it. Headlines like the one above are complicit in letting murderers off the hook and the further erasure of the women and children victims. I guess it’s not just the killers who don’t think women and children are worth the trouble–it’s all of us.


    RAINN Information on Sexual Assault Awareness Month

    RAINN (Rape, Abuse & Incest National Network), the nation’s largest anti-sexual assault organization, released a new Public Service Announcement (PSA) entitled “Speak-Out.” The PSA aims to encourage those affected by sexual violence to “speak-out” and get help through the National Sexual Assault Hotlines, available 24/7 over the phone (800.656.HOPE) and online at

    April is Sexual Assault Awareness Month

    2009 Theme: Prevent Sexual Assault in the Workplace

    While working or on duty, U.S. employees experienced 36,500 rapes and sexual assaults from 1993 to 1999. This excludes the more than 12,000 annual reported acts of sexual harassment at work. Sexual violence that happens in the workplace is unfortunately common.

    Sexual Assault Awareness Month Campaign
    created a Workplace Outreach Guide to help you in this effort. The 2009 campaign also includes a fact sheet on workplace sexual violence and an Employer Checklist on sexual harassment among other resources.

    Workplace sexual violence awareness resources