The plaintiffs in this case are mothers in New York who have been subjected to domestic violence, and as a result, had the Administration for Children's Services (ACS) remove their children from their custody. Represented by the Sanctuary for Families, Lawyers for Children, and the New York Legal Aid Society, they each brought suit, separately, in 2000 in U.S. District Court, Eastern District of New York, against ACS. Their cases were then consolidated and converted to a class action in January 2001, against the state, the state Office of Children and Family Services, the city of New York, and the city Administration for Children's Services (ACS). The plaintiffs claimed violations of Constitutional rights, including the First, Fourth, Ninth, Thirteenth, and Fourteenth Amendments, and violations of federal and state law, including the Adoption and Safe Families Act of 1997, 42 U.S.C. § 675; the Violence Against Women Act of 1994, 18 U.S.C. § 2261; and the Child Abuse Prevention and Treatment Act Amendments of 1984, 42 U.S.C. §§ 5101-5106.

Plaintiffs moved for class certification in January 2001. Judge Jack B. Weinstein pushed for an expedited trial schedule and consideration of preliminary injunctions, regardless of a final class certification decision, because of serious charges made of deprivation of constitutional rights to custody of children. After numerous hearings of testimonies supporting the claims of the mothers, in July 2001 the court certified the class with two subclasses in order to avoid a conflict of interest between mothers and children. Subclass A consisted of all persons subject to domestic violence or its threat who are custodians of children if the children were not themselves physically harmed and if the children are sought to be removed by ACS. Subclass B consisted of all children in the custody of a custodian in Subclass A who have been removed or are likely to be removed by ACS and has not been returned to the custodian as soon as possible. Nicholson v. Williams, 205 F.R.D. 377 (E.D.N.Y. 2001).

On July 9, 2001, a trial commenced to determine whether and in what form a preliminary injunction should issue. Trial lasted for twenty-four days and over forty-four witnesses testified. After trial concluded at the end of December, the court issued a preliminary injunction. The court prohibited ACS from separating a mother, not otherwise unfit, from her children on the basis that, as a victim of domestic violence, she was considered to have "engaged in" domestic violence. Additionally, the court required ACS to increase compensation for attorneys appointed to represent mothers threatened with separation from their children in order to allow for adequate representation of the mothers. Judge Weinstein noted the praiseworthy improvement ACS made to rectify continuing injustices, but nevertheless found that the defendants' constitutional violations, i.e. the separation of children from their families without due process, "may hinder parent-child bonding, interfere with a child's ability to relate well to others, and deprive the child of the essential loving affection critical to emotional maturity." In re Nicholson, 181 F. Supp. 2d 182, 185 (E.D.N.Y. 2002).

In January 2002, the court stayed the injunction until June 2002, except for the requirement that the defendant ACS produce monthly reports on steps it was taking to protect the subclasses' rights.

Meanwhile, in an extensive opinion over 100 pages, the court clarified its initial December order and preliminary injunction, and identified modern perspectives on domestic violence and child welfare. After considering the facts of the plaintiff mothers' stories, and the views of experts, the court opined that best practices require that mothers should not be accused of neglect for being victims of domestic violence; batterers should be held accountable; children should be protected by offering battered mothers appropriate services and protection; separation of battered mothers and children should be the alternative of last resort; child welfare employees should be adequately trained to deal with domestic violence; and agency policy should provide clear guidelines to caseworkers. Judge Weinstein found that ACS policies and practices rarely employed any of these best practices, nothing that "[c]hildren'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 ACS's practices and policies regarding abused mothers." Nicholson v. Williams, 203 F. Supp. 2d 153, 254 (E.D.N.Y. 2002)

The defendants appealed, and the plaintiffs cross-appealed. The defendants appealed certain provisions of the preliminary injunction, but the U.S. Court of Appeals for the Second Circuit denied the motion for a stay of the injunction. While the appeal before the Second Circuit was pending, all four plaintiffs accepted judgments plus reasonable costs and attorney's fees. The cross-appeals of the plaintiffs were withdrawn as moot.

Additionally, Circuit Judge Katzman for the Second Circuit concluded that the federal constitutional questions may be substantially altered by controlling state law. Thus, the Second Circuit submitted a certification of questions of state law to the New York Court of Appeals. Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir. 2003). The New York Court of Appeals answered the questions, finding that a child's exposure to domestic violence against their caretaker is insufficient to constitute neglect under New York state law. Nicholson v. Scopetta, 820 N.E.2d 840 (N.Y. 2004). Thus, the Second Circuit remanded the case to the District Court. Nicholson v. Scopetta, 116 F. App'x 313 (2d Cir. 2004). Meanwhile, the District Court had extended the preliminary injunction until October 2004.

In December 2004, the Court found that ACS had substantially complied with the terms of the preliminary injunction and the City stated its intention to comply with the New York Court of Appeals decision. Thus, the parties settled by stipulation to terminate the preliminary injunction on December 31, 2004, and that the case would be dismissed with prejudice in September 2005 unless the plaintiffs moved to restore the case before that time. The plaintiffs did not move to restore the case, and the Second Circuit dismissed as moot any remaining appeals. After months of negotiations, the court settled the matter of attorneys' fees in March 2007.

Elizabeth Homan - 12/20/2012


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