In a report this week on the impact of the $170 million in budget cuts to the state’s court system in the 2011-12 fiscal year, the New York State Bar Association noted that in Family Court in particular, cases not completed during reduced court hours are adjourned days or even weeks, disrupting children and families in a time of crisis.
The case involving 7-year-old Jessie Lugo in Brooklyn Family Court in December is one example of how time restraints take an added toll on families already in distress.
The Lugo family—Jessie, his sisters, Jasmine, 9, and Shannon 14, and his parents, Anthony Lugo and Noreen O’Neill—had been living in the homeless shelter in the Brownsville section of Brooklyn.
On Dec. 8, Mr. Lugo was beaten by three men at the shelter, according to a police report. He was taken by ambulance to Kings County Hospital, where he was treated for a black eye and multiple bruises on his back, ribs and legs. Ms. O’Neill was not at the shelter and was not scheduled to return until later in the day.
That left Jessie, Jasmine and Shannon without adult supervision. Police took them to a residence in Manhattan for children awaiting placement in foster homes, where they remained overnight.
Child welfare workers from the New York City Administration for Children’s Services investigated and filed a neglect case against Mr. Lugo and Ms. O’Neill the next day. They asserted that Ms. O’Neill had been attending a drug treatment program.
The case came before Judge Alan M. Beckoff (See Profile) late on Dec. 9, who at 3:45 p.m. was already juggling two other neglect cases. As the judge assembled the lawyers, parties and in one case a translator, he reminded those in the courtroom of the looming 4:30 p.m. deadline to shut down court and avoid overtime.
The Lugo-O’Neill case was called at about 4:15. But at that late hour, Judge Beckoff advised the parties that the hearing would have to be put over until Monday.
ACS attorney Michell Burke asked for an order authorizing the children to remain in the agency’s care over the weekend.
Meanwhile, Ms. O’Neill had told her attorney, Zabrina Aleguire, that she had not been in drug rehab but had been serving three days at Rikers Island for failing to report for community service in a year-old turnstile jumping case.
Noting that all seven judges assigned to hear neglect cases would be in a training session on Monday, Ms. Aleguire asked that the case be adjourned to Tuesday, Dec. 13.
At 4:29 p.m., Judge Beckoff ordered the children to remain in ACS’ care. The upshot was that Jessie was sent to one foster home and his sisters to another. They would remain separated from their parents and each other for at least five more days.
When the case reconvened on Dec. 13 before Judge Amanda White, ACS reversed course and made the case that the children could return to their parents as Ms. O’Neill, who had been in Rikers, had agreed to submit to periodic drug screening. Mr. Lugo, a recovering addict who was already participating in a methadone program, agreed to continue treatment.
Jessie sat with his sister Jasmine in the only row of benches in the ninth floor courtroom. Mr. Lugo and Ms. O’Neill next to their lawyers at the counsel table. Shannon, who was sitting next to her father, reached over and clasped his hand. He raised hers to his lips and kissed it.
Then Judge White made it official: The family could be reunited. When Jessie realized the import of the judge’s words he flew off the bench and fist-pumped like a game-winning Michael Jordan.
Lauren Shapiro, the head of the Brooklyn Family Defense Project, which represented Ms. O’Neill, said that the agreement was “typical of the resolutions” her agency works out to limit “the trauma caused to children that results when they are taken from their homes.”
Had there been “meaningful judicial oversight” when the case first came into court, she said, the arrangement could have been made five days earlier and the “continued separation of the family averted.” With cutbacks in court hours, the situation presented by the Lugo-O’Neill case has occurred “over and over again” in the Brooklyn court, she said.
The Administration for Children’s Services declined to address the specifics of the Lugo-O’Neill case, but issued a statement affirming “the preference is clearly” to obtain a court order prior to removing children from their families or to seek court review expeditiously when emergency removal powers are exercised.
The statement also took note that “when the court is not available, uncertainty, confusion and frustration for parents, children and the agency result.”
Starting in April 2011, the court system took two budget-saving measures that curbed judges’ discretion to hear late-arriving cases on the same day they come into court even if facts suggest a removal might not be warranted: a near ironclad ban on overtime coupled with a shortened court day, requiring that judges stop handling cases at 4:30 p.m. instead of 5 p.m.
Family law practitioners in several boroughs say that before the cuts, judges handling emergency removal requests routinely kept their courtrooms open to insure an informed initial decision on whether ACS had shown the “imminent harm” necessary to separate children from their families. Though typically judges might keep their courtrooms open to 7:30 or 8 p.m., several reported judges working as late as 11 or 11:30 p.m.
Crystal Screen, the head of the 18-B lawyers working in Queens Family Court, said judges in that borough would keep their courtrooms open to conduct hearings in the neglect intake part. But when the overtime restrictions were imposed, she said, “the culture changed instantaneously.”
Peter Passidimo, the Family Court’s chief clerk, said that despite “an emphasis” on hearing cases on the same day, it is not logistically possible. The court does not entertain on the same day petitions filed after 3 p.m. The deadline is needed to avoid an unmanageable pileup of cases at the end of the day, he said.
But even before the cutbacks, he said, judges often made decisions with little information, other than the allegations in the petition, because of time constraints on ACS and lawyers representing parents and children.
Family Court Act §1027 requires judges to hold a hearing “no later than the next court day.”
The law instructs that an emergency removal is not to be made without a court order unless there is “not enough time” to apply for one, FCA §1024(a)(ii).
A November 2010 memorandum issued by former ACS Commissioner John B. Mattingly likewise placed a premium on getting a court order prior to the removal of children. He cautioned the agency’s child welfare personnel that they were to remove children from their families without a court order “only when it is determined that harm to a child is immediate or emergent and the Court is not available because of the time of day or the day of the week.”
Judge Lawrence Marks, the court system’s director of administration, said in an interview that the Judiciary’s $2.3 billion 2012-13 budget contains sufficient funding to permit more flexibility in applying the 4:30 p.m. deadline in Family Court as well as in other courts.
Postscript: The Lugo-O’Neill family went to live with Mr. Lugo’s mother in the South Bronx. The week before Christmas, with ACS’ assistance, the family moved into a shelter for homeless families where Mr. Lugo would be free of danger from the trio that beat him at the Brownsville family shelter.
@|Daniel Wise is a freelance reporter in New York.