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BDS CIVIL JUSTICE SUPERVISING ATTORNEY BILL BRYAN TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON THE NUISANCE ABATEMENT FAIRNESS ACT

TESTIMONY OF:

Bill Bryan – Supervising Attorney, Civil Justice Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Public Safety

Hearing on the Nuisance Abatement Fairness Act

November 2, 2016

My name is Bill Bryan and I am a Supervising Attorney in the Civil Justice Practice at Brooklyn Defender Services (BDS). Thank you for this opportunity to address the New York City Council Committee on Public Safety.  BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, to tens of thousands of clients in Brooklyn every year. We thank the New York City Council for moving to protect New Yorkers from the harms of so-called nuisance abatement and padlock laws. We believe the Nuisance Abatement Fairness Act includes many critical improvements to the City’s Nuisance Abatement Law.

Public Nuisance Abatement, a little-known provision of the NYC Administrative Code, was ostensibly created to assist in the shuttering of illegal gambling and sex industry in Times Square. However, it has since evolved into a law enforcement tool to circumvent the due process protections of New York’s Landlord-Tenant Laws and deprive citizens of access to their homes. The ProPublica/Daily News report published in February 2016 shed light on what attorneys in BDS’ civil justice practice have seen for years: that these laws disenfranchise mostly low-income New Yorkers of color, break up families, and punish entire households for allegations that are often unsubstantiated or wholly dismissed by our criminal and civil courts. ProPublica found that 98% of the nuisance abatement actions that occurred over 18 months targeted people of color. While the NYPD is ultimately responsible for affirmatively enforcing these laws in such a flagrantly racially disparate manner, it is New York City’s nuisance abatement laws, as currently written, that have allowed for years of unchecked abuse and unmitigated harm to some of New York’s most vulnerable communities.

Nuisance abatement actions are not being filed in emergency situations where the city is without another remedy to halt alleged conduct. Indeed, we routinely see these cases filed where a client’s tenancy, and possibly their guilt or innocence, has withstood two other proceedings on the same set of facts–for example, first a criminal proceeding and then a NYCHA termination proceeding. These actions, based upon the same circumstances as an arrest, are often filed long after a criminal case has finished, leaving tenants without legal representation or even advice about their rights or options. In our experience, these cases seem intentionally geared to taking advantage of pro se litigants.  One way of assessing this phenomenon would be to analyze how many of the filed cases have not settled with an attorney on both sides.  This doubling (and in some case tripling up) of cases on the same facts and circumstances is not a good use of resources on the side of the court, the NYPD or the tenants, who disproportionately suffer from this expenditure of resources by missing work and/or medical appointments.

Ultimately, BDS believes that the NYPD should not be in the business of evicting people from their homes. We also believe that the criminalization of drug use, which underlies many nuisance abatement actions, is the cause of much of the associated social problems, not the solution. Making people homeless and breaking up families, as an auxiliary of criminalization, is at best a horribly destructive crime reduction strategy, and at worst, a counterproductive, criminogenic attack on low-income communities of color. The term “nuisance abatement” is misleading; the NYPD’s mandatory exclusions of loved ones and evictions simply relocate any nuisances that may be present. The sex industry that once was centered in Times Square has not abated; it has simply migrated into other communities and online.

More concerning, these cases are filed seemingly with the sole purpose of fishing for default judgments. In every case where an attorney from our office has answered a public nuisance complaint, the NYPD has backpedaled and been willing to settle the matter with a simple “do not engage in criminal activity” stipulation. While this practice is arguably functional for those who are represented by an attorney, the vast majority of tenants facing these types of procedurally complicated, high-stakes proceedings are unrepresented. The immediate disposal of the cases we fight calls into question the good faith in which they are brought. Yet when a tenant fails to answer, the NYPD invariably moves forward with a lockout.

These NYPD-initiated proceedings are another burden on tenants’ time, limited resources, and shelter, without a clear benefit to The City. They are being utilized in a way that conflicts with the stated purpose of the law. For a program that claims to exist to help stabilize neighborhoods, these tools serve only to further alienate vulnerable citizens and erode public trust in law enforcement in communities of color.

These cases should not be used as fishing expeditions to try to get enhanced discovery or hold tenants (who may or may not be guilty) to perpetually binding probationary-style stipulations.

BDS is grateful to the City Council for bringing these laws to light and introducing a variety of changes that we hope will require the NYPD to dramatically reduce their use of nuisance abatements.  There are a few provisions that would benefit from small but important adjustments. We list below our assessment of each bill, with specific comments or suggestions for each.

 

Responses to Proposed Legislation
(1) No. 1308 (The Speaker, Council Member Johnson, and the Public Advocate) — A Local Law to amend the administrative code of the city of New York, in relation to repealing sections of the nuisance abatement law permitting certain forms of injunctive relief

We strongly support this legislation, which would eliminate temporary closing orders, or ex parte orders through which the NYPD evicts New Yorkers without giving them any chance to defend themselves.

These closing orders are the most egregious practice in the nuisance abatement law as currently written, especially when applied to residential closings. Every client we have seen who has suffered an unexpected and unannounced closing is left reeling, homeless, and desperate, and is often willing to do anything, or sign anything, to get back into their home as quickly as possible. The coercive nature of settlements offered in order to resolve a temporary closing order cannot be overstated. If nothing else passes, this change is imperative because it means the person stays in their home, due process is maintained, and they can be removed from their home only after the NYPD meets their burden and the tenant(s) are given a meaningful opportunity to be heard. When a tenant, and their family, are still in their home, they are less likely to agree to exclude a loved one as a condition of reentry.  This provision alone may help to keep vulnerable families together.

(2) No. 1315 (Council Member Garodnick and The Speaker) – A Local Law to amend the administrative code of the city of New York, in relation to resolving conflicts between the nuisance abatement law and related proceedings
This is a useful provision limiting the amount of cases filed.  It must be noted that the city also files these cases based on allegations in NYCHA apartments. Thus, it may be necessary, to meet the goals of this amendment, to require corporation counsel to inquire whether NYCHA is already seeking termination of tenancy or permanent exclusion based upon the same conduct.

The term “similar legal proceedings” is vague and confusing. In almost every residential action, we see criminal charges filed based upon the same conduct that forms the basis of the nuisance abatement action. Does the Council intend for this amendment to completely foreclose the possibility of these actions in such cases? If so, we applaud this measure. If “similar” is going to be more narrowly defined to mean that a nuisance abatement alleging repeated drug sales can go forward if the criminal case didn’t seek closure of the apartment, then it is unnecessary, as this will never be an issue in a criminal proceeding.

(3) No. 1317 (Council Member Gibson and The Speaker) – A Local Law to amend the administrative code of the city of New York, in relation to excluding possession of a controlled substance or marihuana from the nuisance abatement law and increasing the number of sales of controlled substances sufficient to create a nuisance
We strongly support this legislation, which would end the use of nuisance abatements against New Yorkers accused of low-level drug offenses. As stated above, such behaviors do not belong in the criminal justice system, and they certainly do not warrant evictions or exclusions by the NYPD. Among the communities where these offenses are most commonly enforced, stable housing is a critical resource. The New York State Office Alcohol and Substance Abuse Services has found that “safe, affordable housing and stable living-wage employment are fundamental to successful long-term recovery.” Household-wide evictions and exclusions of loved ones are fundamentally inappropriate responses to suspected drug use.

(4) No. 1318 (Council Member Grodenchick, Johnson, and The Speaker)A Local Law to amend the administrative code of the city of New York, in relation to requiring verification of a nuisance prior to enforcing injunctive relief pursuant to the nuisance abatement law
We appreciate the Council’s focus on the question of whether the alleged conduct precipitating a nuisance abatement is ongoing. As was reported by ProPublica, often, it is not. With this change, even the granting of a closing order is not a guarantee that it can be enforced. By requiring the NYPD to independently verify the situation hasn’t changed before they enforce the court’s order, it allows an individual locked out of their home to challenge not only the underlying lockout but also the NYPD’s decision to enforce it at the time, and in the manner that they do.

While ensuring that the NYPD complies with this verification requirement, especially where respondents are unrepresented, will be difficult, this legislation provides an additional remedy and protection to affected residents. By adding a layer of discretion in enforcement, this change will remove the ability of the NYPD to claim they are merely enforcing a court order.

As referenced in the discussion of closing orders, once an injunction is enforced and a family is removed from their home, the bargaining power of the parties in negotiating settlement drastically changes, especially for pro se residents. Every time a closing order is enforced where there is a possibility that the alleged nuisance has been ameliorated or the offending party has vacated, the risk increases that innocent residents will permanently lose their homes or exclude innocent loved ones.

We hope this change will have the effect intended and put a stop to evictions where the alleged misconduct is no longer occurring. As always, we are available to discuss possible amendments to help strengthen this legislation.

(5) No. 1320 (Council Member Johnson and The Speaker)A Local Law to amend the administrative code of the city of New York, in relation requiring laboratory reports in drug-related nuisance abatement cases
We strongly support this legislation. Most of our clients who are charged with possession of a controlled substance are prosecuted based on “the experience and expertise” of the arresting officers. Many marijuana arrests are predicated on field tests. A recent ProPublica investigation into the widespread reliance on such cheap field tests for controlled substances by inadequately trained police officers in scientifically unsound conditions. The outlet estimates that “every year at least 100,000 people nationwide plead guilty to drug-possession charges that rely on field-test results.” In response, the Safariland Group, the largest manufacturer of the test kits, released a statement that “field tests are specifically not intended to be used as a factor in the decision to prosecute or convict a suspect…Our training materials and instructions make it clear that every test kit, whether positive or negative, should be confirmed by an independent laboratory.”[1] Positive findings in proper laboratory tests should be a prerequisite in any criminal conviction for an offense relating to controlled substances. Requiring them in nuisance abatement proceedings is an important step in the right direction, though I must reiterate that drug charges should not precipitate an eviction by the NYPD or any other city agency, regardless of the lab findings.

This change is necessary not just to ensure the substance alleged actually was illegal, or to encourage the NYPD to conduct laboratory testing, but also to ensure they don’t ignore and omit previously conducted negative lab results and simply allege drugs were found based solely on disproven arrest records. So long as judges understand and enforce the requirement of lab reports, this change has the potential to limit many of the most egregiously frivolous filings.

(6) No. 1321 (Council Member Johnson and The Speaker) — A Local Law to amend the administrative code of the city of New York, in relation to requiring a police or peace officer to personally witness a drug violation to file an action under the nuisance abatement law
We support this legislation. We note, however, the NYPD, and at least one local District Attorney, lack any accountability measures to ensure police officers do not falsely represent to a court that they have witnessed an offense; in one case involving a BDS client, a judge found that three officers in the 67th Precinct had perjured themselves in court, yet they remain on the beat and the District Attorney apparently continues to rely on their word for prosecutions.[2] That said, this legislation could give our civil attorneys the opportunity to cross-examine the police officer who served as a witness in the criminal case.

(7) 1323 – By Council Member Koslowitz and The Speaker (Council Member Mark-Viverito) — A Local Law to amend the administrative code of the city of New York, in relation to prohibiting permanent exclusions pursuant to the nuisance abatement law.
BDS supports this bill’s intention of limiting the harm of exclusion to one year for individuals who are named in nuisance abatement actions (or up to three years if corporation counsel can demonstrate through clear and convincing evidence that unique circumstances exist such that a greater period up to 3 years is required to abate the nuisance).

However, in our experience, whether a bar excluding someone from their home or business is one or two of three years is irrelevant to our clients, all of whom are tenants. In practice, New York City landlords evict the leaseholder at the point of the nuisance abatement and find a new tenant. Once evicted, the exclusion is de facto lifted because our clients no longer have access to their home.  The ProPublica/Daily News report noted that tenants and homeowners lost or had already left homes in three-quarters of the 337 cases where they were able to determine the outcome. The other cases were either withdrawn without explanation, were missing settlements, or were still active.[3] The ProPublica data backs up our experience representing clients – that this reform, while well-intentioned, would not protect the vast majority of people facing nuisance abatement actions.

Furthermore, the law is not explicit that any settlement reached after a nuisance abatement action is filed must be reviewed and signed off on by the presiding judge. While decisions rarely result in permanent exclusion, the NYPD often asks for such exclusion as a condition of dismissing the case. Even if a court disposition cannot exceed one or three years, that would not stop the NYPD from facilitating a tenant’s voluntary agreement to permanently exclude an individual in exchange for dismissal.

For these reasons, we would ask the Council to look for alternate means to strengthen this bill.  As always, we are available to assist in amending the bill to go further to accomplish its stated aims.

(8) 1326 – By Council Members Levin, Torres, Williams, and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to repealing the padlock law.
BDS strongly supports repeal of the Padlock Law, which permits the NYPD to close a residence or business housing illicit activities after two offenses and one conviction without a judicial order. According to the Council, the NYPD has not used this draconian remedy for more than 15 years, and this bill will permanently abolish it. We have never heard of this law being used in Brooklyn, though we rarely represent clients with stores and generally only represent tenants.

The Padlock Law set a much lower standard for closing a residence or business than the nuisance abatement process and granted nearly unfettered power to the NYPD that unsurprisingly resulted in abuse. The Council’s wholesale repeal of the law recognizes the importance of due process and rejects granting the NYPD broad authority to act without judicial oversight.

(9) 1327 – By Council Members Levine, Gibson, Johnson, and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to requiring reporting on the use of the nuisance abatement law.
BDS strongly supports this reporting bill. We believe it is also encouraging to see the Council pursuing substantive reform at the same time as they require reporting on these practices. We hope the data will allow for meaningful review and oversight of the effect these changes have on these practices and lead to further amendments as necessary.

(10) Proposed Int. 1333-A – in relation to establishing a statute of limitations for the nuisance abatement law and repealing provisions of the nuisance abatement law that define some types of nuisances.
BDS strongly supports the creation of a statute of limitations of four months for filing nuisance abatement actions. As the New York Court of Appeals appropriately noted, statutes of limitations are valuable because they “protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time” and they “encourag[e] law enforcement officials [to] promptly investigate suspected… activity.”[4]

(11) 1338 – By Council Members Salamanca, Johnson, and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to requiring procedures for the corporation counsel when filing actions under the nuisance abatement law.
BDS strongly supports the Council’s objective to preclude the NYPD from filing actions based on sealed records but we do not believe this bill, as written, will accomplish this goal. Our Criminal Procedure Law already precludes the NYPD from relying on sealed records in subsequent legal proceedings. Thus, if anything, this bill really only reiterates what the small number of New Yorkers who challenge these cases with legal assistance will already be aware of. For the City Council’s bill to have any force in protecting pro se litigants, there would need to be a penalty for use of sealed records or put in a requirement that no closing order will be granted unless the NYPD make showing that none of the enumerated allegations resulted in favorable dispositions with sealed records. This would then put the onus on the judge to check each factual allegation before signing a closing order.

Arrest and court records in cases that are dismissed are already sealed by operation of law. Yet the NYPD routinely files public nuisance abatement cases based exclusively on these records months after they have been sealed. Where an individual is pro se they may be locked out of their home or agree to exclude family members based upon a court action that directly contradicts the purpose of the sealing laws explicitly aimed at rendering the arrest a nullity. These laws are intended to be so strong, despite the NYPD’s refusal to follow them, that an individual whose case has been dismissed is entitled to state under oath that they have never been arrested.  Yet the NYPD is routinely seeking to evict the most vulnerable citizens based entirely on these arrests that, by operation of law, never occurred. The NYPD attorneys, in effect, are violating the law each time they file one of these cases based upon sealed records.

Perhaps not surprisingly, but infuriatingly, the NYPD is usually willing to settle cases based on sealed records when confronted on the issue by an attorney, but the cases where new Yorker’s who are supposed to be protected by these laws can retain counsel are few and far between. For every case we successfully settle due to the existence of sealed records, there are countless more that the City is prosecuting against pro se individuals. ProPublica found that only 22% of those without lawyers reached settlements with police that allowed them to keep their apartments without barring anyone, versus 43% of tenants with lawyers.[5] In our experience, representation by counsel is often the difference between staying in your home or not.

The NYPD practice of knowingly using sealed records and prosecuting claims based solely on sealed records continues. The NYPD should be required to take steps to comply with state law and implement some measures to ensure records that should be sealed are no longer accessible and that any records copied or sent to other agencies or entities are destroyed.

This bill will not create any greater incentive for the NYPD to comply with existing law. Our office is happy to work with the Council to explore further what kind of language would actually accomplish the bill’s intent.

We also support the second provision of Int. 1338, which would require that agencies seeking nuisance abatements provided defendants with “personal service upon a natural person as provided in the civil practice law and rules.”

This change, similar to the removal of the provisions permitting temporary closing orders, will go a long way in ensuring that residents are not locked out of their homes without any notification or before any opportunity to confront the allegations against them.

(12) 1339 – By Council Member Torres and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to restricting certain orders and dispositions pursuant to the nuisance abatement law.
BDS strongly supports this bill. This legislation will restrict any action enforced pursuant to the Nuisance Abatement Law to only the least restrictive remedy, meaning that a judge could evict a person or shutter a residence only if there were no less burdensome means of ceasing the nuisance. This bill would also prohibit the application of this law from restricting the rights of any person who was not aware or had no reason to be aware of a nuisance.

Again, we support the Council’s efforts to ensure these laws are used and injunctions are enforced only where necessary, but these laws were already drafted, and allegedly used, only where there were no less restrictive means available. Nonetheless, closing orders, voluntary exclusions and homelessness resulted in an extremely large percentage of cases. Presumably the judges who signed these orders are persuaded by the City’s language concerning imminent risk to the health, safety, and welfare of the public. Implied in the inflammatory language that is standard in these filings is the fact that no other means are available to curb the practices alleged.

That said, the Council is taking a strong stand with this package of legislation, sending a clear message that nuisance abatement actions are generally not an appropriate remedy.

(13) 1344 – By Council Member Williams and The Speaker (Council Member Mark-Viverito) – A Local Law to amend the administrative code of the city of New York, in relation to reforming the nuisance abatement law regarding the alcoholic beverage control law.
BDS supports this bill, which adds protections for those facing nuisance abatement cases involving violations of the State’s ABC Law. The bill would require 4 violations of this law to constitute a “nuisance” and restrict these violations to only those in which a reasonable person in the position of the person violating the law would have been aware of such violation. The bill also restricts the application of this portion of the Nuisance Abatement Law to “continued, willful, and flagrant” violations.

We recommend that the City apply the proposed language allowing a defense of a reasonable person without knowledge of the violation to all other nuisance abatement cases, not just those involving violations of the ABC Law.

Conclusion
Thank you for considering my comments. BDS looks forward to continuing to work with the Council to make our criminal justice system more fair, effective and humane. If you have any questions, please contact me at bbryan@bds.org or (718) 254-0700 x 351.

[1] Ryan Gabrielson & Topher Sanders, Busted: Common Roadside Drug Test Routinely Produces False Positives, ProPublica, July 7, 2016, available at https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives.

[2] Nick Pinto, The Incredibles: Judges Said These Cops Can’t Be Trusted, So Why Does the D.A. Rely on Them?, The Village Voice, Nov. 1, 2016, available at http://www.villagevoice.com/news/the-incredibles-judges-said-these-cops-cant-be-trusted-so-why-does-the-da-rely-on-them-9292168.

[3] Sarah Ryley, No Conviction Home, NY Daily News, Feb. 5, 2016, available at http://interactive.nydailynews.com/2016/02/nypd-nuisance-abatement-actions-boot-hundreds/.

[4] Toussie v. United States, 397 U.S. 112, 114-15, as cited in People v. Seda, 93 NY 2d 307, 311 (N.Y. 1999).

[5] Ryley, No Conviction Home.

BDS COMMUNITY ADVOCACY COORDINATOR NICK MALINOWSKI TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON POLICE ACCOUNTABILITY AND THE CIVILIAN COMPLAINT REVIEW BOARD

TESTIMONY OF:

Nick Malinowski

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Public Safety

Oversight Hearing on

Examining the New York City Civilian Complaint Review Board

October 21, 2016

My name is Nick Malinowski, I am here on behalf of Brooklyn Defender Services, which provides high-quality multi-disciplinary criminal, family and immigration defense, civil legal services such as housing, benefits, education and social work support to more than 40,000 indigent Brooklyn residents every year. Each of our clients, by definition, has had an interaction with the New York City Police Department and its officers, giving us a front row seat from which we can consider mechanisms of police accountability in New York City. We thank the City Council Committee on Public Safety, and Chair Vanessa Gibson, for holding this important oversight hearing on the Civilian Complaint Review Board, and for inviting us to attend.

Background: The Importance of Police Accountability and Legitimacy
Never before in the history of our organization has police accountability been so prominently an issue of popular national importance. Just four years ago drag-net Stop & Frisk was being defended as an essential policing tactic, responsible for saving tens of thousands of lives despite research that questioned this causality and obvious constitutional concerns. While we welcome the national, progressive attention on these issues, to which our clients are often at the receiving end, we must acknowledge how we got here: long-standing police abuses coming into the light due to lawsuits, civilian documentation and protest. The deaths of Eric Garner and Ramarley Graham at the hands of the New York Police Department, and the public’s perception of a lack of accountability for the officers involved, especially as compared to the extensive punishment regimes for civilians in criminal court, have driven a significant interest in this topic both locally, nationally, and even internationally.

There is a growing interest in the role of civilian oversight to address the crisis of police accountability. While the administration has stressed opportunities for the NYPD to, as they say, “reform itself from within,” history has not proven this to be the most expedient path to progress. Rather, anti-corruption commissions from the 1970s (Knapp Commission) and the early 1990s (Mollen Commission), followed by law suits including Floyd v. City of New York, Ligon v. City of New York, Raza v. City of New York have generated the biggest wins for civil rights and policing reform. The CCRB is generally considered a national model for civilian bodies, yet the question as to whether it actually deters police misconduct remains an open one; in fact, the CCRB suggested in its 2015 annual report that it would be studying this very question. We anxiously await the results.

While much of the national focus is on deaths in police custody, or at the hands of law enforcement, it is through non-fatal daily punitive interactions, nearly 1 million each year, that most people experience the police in New York City. One of the major changes in the courtroom resulting from the massive influx of arrests accompanying the shift towards broken windows policing is the reality that most cases rely on the testimony of a single police officer alone, rather than a civilian-generated complaint. Deference to prosecutorial power and discretion and sentencing guidelines that mandate long prison sentences have made trials nearly extinct, and thus the integrity of the police officer has become paramount to our system of criminal justice in New York City.

The importance of, and challenges of, accountability become even more apparent as we learn more about the importance of perceptions of legitimacy and how trust in the police drives down violence of all kinds. A recent study in Milwaukee showed that some people, particularly in areas of high police involvement, stopped calling 911 to report crimes after high-profile examples of police misconduct[1]. We need to cease considering police misconduct as a case of “bad apples” and look towards systemic reforms and accountability measures. The racial gap in perceptions of policing is widening, along with other forms of polarization in our country. Nationally, confidence in the police is at an all-time low[2].

Current Holes in Accountability
The city needs to do more to protect the public from problem officers. New York City is home to one of the most secretive regimes in the country when it comes to police transparency. It is all but impossible for the public, or defense attorneys, to see police disciplinary records or any administrative actions resulting from alleged or substantiated misconduct. Compare these privacy protections to those experienced by our clients in criminal court, who are accused sometimes of serious offenses but much more frequently of minor behaviors less damaging to a sense of public order than police misconduct. Is it more important for the public to know which of their neighbors has stolen hygiene products from a chain pharmacy, or which officers in their communities carry substantiated claims of false arrest, brutality or other abuses of authority? Unfounded and unsubstantiated claims of gang involvement are used against our clients routinely, yet we are unable to include substantiated claims of misconduct against their accusers. Recently the Office of Court Administration sought corrections for 36,000 records where criminal histories meant to be sealed were left open; the state sells these records to third-party vendors who sell the information, even when it’s inaccurate, to landlords, bankers, anyone who asks. Sealed information from RAP sheets is also regularly leaked to news outlets by law enforcement personnel, in violation of state law. When the names and photographs of our young clients are distributed to the media, our City has already done them grievous lifetime harm that cannot be undone by findings of innocence, youthful offender adjudications, or subsequent rehabilitation. As a general rule privacy has been greatly degraded in all areas except for police misconduct and discipline. Why?

Because the City has no apparatus for publicly collecting and disseminating these data and records, community groups are left tracking police officers in their precincts in order to try to produce some semblance of accountability. While the public, especially with cell-phone video, have done tremendous public good as a result, the city should be concerned that what is really a government obligation has been filled by community members as a public safety necessity. What is left is a well-founded public perception that the City will only act on police reforms when it is forced to do so. The CCRB should be tasked with providing the public with greater access to the performance and disciplinary backgrounds of officers in local precincts. We cannot hide behind state laws that seem to frustrate this task.

To the agency’s credit, the CCRB has attempted to gain access to some police records, but has been blocked by the City Law Department, which the City Charter provides with final say over areas of litigation pursued by the CCRB. This is an obvious conflict of interest and disrupts any claims of the CCRB being an independent agency. The Council should look into ways to make the CCRB independent of the Law Department, which, of course, defends the City in Civil Law suits stemming from police misconduct. As a civilian oversight body, the CCRB should be accountable to the people of New York, and specifically to those people who have been victimized by police misconduct.

In keeping with this premise, the Council could consider changing the City Charter to allow the CCRB to have final disciplinary say over police officers, rather than deferring this responsibility to the police commissioner. The CCRB has itself acknowledged that it does not know if the penalties resulting from substantiated misconduct claims have any deterrent effect. Troublingly, for the most problematic officers, complaints stacked up after five or more years of service time, perhaps indicating that as they were disciplined they grew more comfortable with misconduct than before.

Brooklyn-Specific Concerns
Brooklyn was the borough with the most CCRB complaints in 2015. Specifically, the 75th and 73rd precincts were among the top two precincts in the City for CCRB complaints, with Brooklyn North Headquarters continuing to be another problematic command. The 75th precinct is also the precinct that generates the highest number of civil lawsuits against the City related to police misconduct, and with the most civil forfeiture claims as well. With the benefit of the CCRB’s recent move toward more precise record keeping, we have also learned, unfortunately, that based on the number of complaints, Brooklyn is home to five of the six worst precincts for LGBTQ New Yorkers. While the Brooklyn District Attorney has won accolades for his conviction integrity unit, this successes expose a history of police and prosecutorial misconduct in the borough that extends back decades.

We ask City Council today, what is being done to reverse these trends, many of which have gone wholly unchecked for years? The CCRB should have the power to recommend officers be transferred to a different precinct following substantiated misconduct. Advocates for police accountability, which include our clients and constituents, rightly seek the dismissal of problematic officers; however, historically this has been all but impossible to achieve. In one of our precincts, civilian video-tape has led to the substantiation of misconduct by several officers who nevertheless remain in the community. It is truly a slap in the face to people victimized by City employees of the Police Department when they are forced into repeated interactions with the same officers. At the very least, the City could explore getting problematic officers off the street, especially in the precincts and communities where they have victimized people.

The Glaring Absence of CCRB in the Courtroom
In its 2015 annual report, the CCRB acknowledged doing no outreach in criminal courts around the City. Roughly 600,000 people a year are summonsed or arrested by the NYPD; all of these people by definition have had contact with a police officer and thus an interaction that has the potential to include police misconduct. Just as the City uses targeted outreach to promote the services of 311 to tenants whose landlords might be illegally denying them heat in winter, we ask the City Council to push CCRB to make outreach in the courts a priority.

Last year a BDS client won his criminal case after a judge found that officers from the 67th precinct in Flatbush were not trustworthy. This was a case where a gun was planted on one of our clients. But what has the city done to curb the authority of these officers who nevertheless may be making arrests even today? How would the public even know? The Brooklyn District Attorney’s Office said he would launch an investigation into the precinct, but more than a year later we have heard nothing. Similarly, the CCRB has found 60 police officers guilty of making false statements during CCRB hearings, though the agency has not published any disciplinary reports relating to these officers. If these officers made false statements to the CCRB, it warrants an investigation into whether they made false statements to courts as well. Does the CCRB have authority to consider cases dismissed or otherwise adjudicated in court with evidence of officer misconduct? If not the CCRB, who should be looking at these types of issues?

More recently a client was falsely arrested; his case was finally dismissed once surveillance video of the arrest was recovered. We knew initially that the officer involved in the arrest had been involved in misconduct due to newspaper articles, alone, but did not have enough facts about the resolution of the initial case to make a persuasive argument to a judge about the instant matter. Eventually our client was vindicated in his claims to innocence by video, but the City should have an interest in preventing cases like this from ever occurring in the first place, and resolving them immediately rather than having to wait for surveillance video. At least this client wasn’t waiting in jail, but of course that happens as well.

Historically our office has been hesitant to work with the CCRB because of the potential negative impact on open criminal matters. Currently we are working with the CCRB to implement a new process for encouraging clients to make complaints of misconduct first to us, and then to the CCRB, so that we can protect their rights as they pertain to the criminal case. The CCRB’s interest in case processing times can conflict with appropriate concern for the rights of people facing criminal charges. Our clients have been told by CCRB that their cases will be closed as “non-compliant” after we advised them to delay testifying due to complicated criminal court matters. People should not be forced into such a choice. To the extent that attorneys serve as reporting non-witnesses to a CCRB complaint, the CCRB should update its rules to provide counsel with all information that is provided to the police and other parties to traditional cases. We hope that by working with CCRB we can develop a process for people with pending criminal cases that works for everyone, and will help the CCRB to collect complaints from our clients.

In speaking with our clients about these issues, the reactions have been decidedly mixed. While some have expressed interest in filing complaints, others have declined, telling us that the CCRB process is unsatisfactory because nothing ever happens to the police officer. It’s hard to explain to someone that at most an officer who has been found to have engaged in serious misconduct could lose a couple vacation days. There is not much incentive for our clients to spend a lot of time following up on these complaints if the outcomes will not be satisfactory. Meanwhile, the CCRB has emphasized mediation as a desired result to reach understanding between police officers and civilians. We agree that a great deal of good can come from this type of conflict resolution, but wonder why the City has prioritized this only in cases of civilians making complaints about police misconduct. We would like to see the City Council look into expanded the use of mediation in the criminal court context as well.

General Concerns for Greater Policing Accountability
The CCRB’s 2015 annual report raises significant issues related to stops and searches and civilian filming of police activity that should prompt action by the City Council. Documented Stop and Frisks have dropped in New York City from 685,724 in 2011 to 22,563 in 2015; however the ratio of complaints to recorded stops has skyrocketed, while the racial make-up of people in reported stops exposes serious questions about racial equity. In 2011, there were 1,655 CCRB complaints related to Stop and Frisk, making the complaint to stop ratio 1:414. In 2015 there were 888 CCRB complaints related to Stop and Frisk, a decline, but one that puts the new complaint to stop ratio at 1:25. This shockingly steep increase combined with the findings of Peter Zimroth, the federal Stop and Frisk monitor, that officers are not always reporting stops is concerning. Similarly we do not always see UF-250s or other paperwork describing stops in arrest information provided to the court, all of which leads us to question whether the decline in stop and frisks has perhaps been overstated.

Similarly, in 2011 there were 58,363 documented searches, which drew 981 CCRB complaints for a ratio of 1:59. In 2015, there were just 4,204 documented searches, leading to 485 complaints, for a ratio of 1:9. Again these numbers lead us to question whether or not searches are occurring without being properly recorded. These issues point for a need for greater City Council oversight of the NYPD as a general matter. Intros 182 & 541, otherwise known as the Right to Know Act, would perhaps mitigate some of these concerns.

Conclusion
Thank you for your consideration of our comments. We look forward to continuing to work with the Council to create meaningful police accountability in our City. Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 269) or nmalinowski@bds.org.

[1] http://www.asanet.org/sites/default/files/attach/journals/oct16asrfeature.pdf

[2] http://www.gallup.com/poll/183704/confidence-police-lowest-years.aspx

BDS CRIMINAL DEFENSE PRACTICE SUPERVISING ATTORNEY YUNG-MI LEE TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON EVALUATING THE PROGRESSION OF JUSTICE REBOOT

TESTIMONY OF:

Yung-Mi Lee – Supervising Attorney, Criminal Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Courts and Legal Services

Oversight Hearing: Evaluating the Progression of Justice Reboot

October 26, 2015

My name is Yung-Mi Lee. I am a Supervising Attorney in the Criminal Defense Practice at Brooklyn Defender Services (BDS). I have practiced as a criminal defense attorney in New York and New Jersey for over 22 years. I currently represent misdemeanor and felony clients in Brooklyn criminal and Supreme Court.

BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. We thank the City Council Committee on Courts and Legal Services and the Committee on Public Safety for the opportunity to testify about Justice Reboot and case processing in Brooklyn.

Brooklyn Defender Services strongly supports the City’s efforts to reduce the number of people who await trial on Rikers Island. In 2015, 67,672 people were admitted to New York City jails, with an average daily population of 10,240.[1] During this period, approximately 13,100 people arraigned in Brooklyn courts spent time on Rikers Island, 89% of who were identified as “African-American” or “Hispanic.”[2] Roughly 75 percent of people on any given day at Rikers Island are there in pretrial detention – presumed innocent under the law and ostensibly waiting for their day in court. Yet the reality is that judges and prosecutors are just waiting for them to plead guilty.

Justice Reboot aims to reduce “unnecessary incarceration” by reducing court processing times.[3] While a laudable goal in concept, in a system where the favored outcome is a plea bargain, the singular focus on case-processing time results in pressure on the defendant to take a plea even if that plea is not fair or does not reflect his or her individual circumstances.  As the attorney for those clients, we agree that the courts should move cases expeditiously but we warn against the tyranny of harsh and inflexible time limits and pressures because they can work against individualized justice and fairness.

There are ways beyond simply expediting cases to significantly reduce the jail population in NYC.  For example, an honest look at the District Attorneys’ policies regarding bail requests could be start.  Since every stay at Rikers cost NYC thousands of dollars, the District Attorneys, as elected officials, should be held accountable for the manner in which they recommend the use of these expensive resources.  Another important example would be to promote the better transfer of information about the case to the defense earlier in the proceedings.  Although reform of the discovery laws would require legislative change, the City Council and Mayor’s Office of Criminal Justice have the ability to persuade prosecutors to adopt a policy of voluntary discovery that would immediately improve the case processing time of cases, dramatically improve the fairness of the proceedings and would save the City millions of dollars in reduced pending caseloads and pre-trial incarceration. .

Justice Reboot’s efforts to reduce the duration of felony cases has resulted in a drop in the number of pending jail cases that are two or more years old. Yet 2016 data from the Office of Court Administration shows that the number of pending felony cases is up since 2015.

The OCA data is consistent with the trends that BDS has seen over the past few years. BDS data and case tracking shows that the number of indicted felony cases has increased and so has the length of the life of those cases. Indeed, we have the exact same number of felony cases where clients are in jail for more than one year as of the end of September as we did in April, when Justice Reboot was announced. While the system is resolving older cases at a slightly faster rate than a year ago, we now have more felony cases and indictments and the cases last, on average, longer than they did a year ago, so there is no net gain. At BDS, we are not feeling the impact of Justice Reboot on our case load.

It is clear that the project’s emphasis on prioritizing the oldest cases has not worked to reduce Rikers populations in any meaningful way. We recommend, instead, that the project instead on understanding the causes of delay and incentivizing the courts and prosecutors to reduce unnecessary incarceration, in line with the Council’s and MOCJ’s objectives.

(1) Qualitative Review of Cases
The City should evaluate the cases that are approximately six months old rather than only the oldest cases.  These cases are the ones where early plea bargaining has not been successful.  Some of these cases are intended for trial and those cases should be expedited.  Cases where there are impediments to resolving the case by plea bargain should be analyzed as to the reason.  It is better to determine the best path of the case early on, including alternatives to incarceration, and have the time for the parties to agree and pursue these options.  At this point there should be an emphasis on reducing or eliminating bail for our clients who are still incarcerated after so long, particularly on cases where a non-jail disposition is possible.

(2) To truly decrease case processing times, DA’s should turn over the police reports early in the case.
The greatest injustice in New York’s criminal justice system is that our criminal procedure laws do not require early disclosure of the evidence on the case to the defense.  This lack of information is unfair and results in wrongful convictions.  It also has a pernicious effect on the process of plea bargaining.  Without any information on the case, it is hard for the defendant to trust the attorney when we recommend acceptance of a plea.  It is hard for the defense attorney to even assess the legitimacy of a plea offer without the police reports.  Without the information we need to negotiate the plea bargain we believe is fair and appropriate, we are unable to move the process forward.  Instead the case ends up in a standstill for months.  When the case finally comes to trial, our experience is that the plea offer often drops significantly.  In Brooklyn, many cases are subject to open file discovery due to the policy of the DA’s office.  Our data shows that the open file discovery alone reduces the average length of case by six months.  Due to the expense associated with delay, the City Council should request that the District Attorneys explain why they decline to adopt an open file discovery policy for all cases other than those in which they are concerned about the witness’ safety.

We spoke in depth about the need for discovery reform at the Committee on Courts and Legal Services hearing on September 23, 2016. Please see our testimony, available on www.bds.org, for more information along with recommendations on what the Council can do to support statewide discovery reform.

(3) Encourage prosecutors and judges to think holistically about the consequences of their bail recommendations and decisions
The Vera Institute of Justice completed a groundbreaking report detailing how New Orleans went about reducing the number of people the city incarcerates on any given day by more than two-thirds since Hurricane Katrina.

The researchers found that decreasing the number of jail beds from 5,832 to 1,438 was critical in reducing incarceration. “There’s absolutely no underestimating how important it is to constrain demand for jail beds by restricting supply,” one researcher said. By capping the number of available beds, the City Council sent a signal to everyone in the system—police, prosecutors, judges—that jail was a resource that was not to be overused.[4]

Similarly, in Rochester, the number of jail beds is limited.  Each day the court is advised about the number of available slots and the Judges are able to use the resource in way that makes the most sense.

The City Council could encourage the Office of Court Administration to generate information for Judges regarding their use of jail beds.  Prosecutors could also be required to keep data on their own bail requests so that the public would have access to that information.  This could also form the basis for DA self-evaluation regarding bail practices. Judges and prosecutors should have some accountability for the expense associated with setting bail.  In addition, the Council should recommend eliminating thousands of jail beds in NYC rather than increasing the supply, as has been requested by DOC.

Of note, the New Orleans City Council also changed the summons system, resulting in officers writing summonses for 70 percent of nonviolent offenders.

The New York City Council has already taken important steps in reforming summonses and how NYPD handles low-level cases. We look forward to seeing the fruits of those reforms when they go into effect next year. But the other lesson from the Vera report is clear: in order to lower the number of people the system incarcerates, we have to take away the incentives for incarceration and provide fewer opportunities for incarceration.

Conclusion
The City Council should consider whether the goal of the Justice Reboot initiative, to reduce case processing times, is sufficient to properly guarantee the most limited and appropriate use of pre-trial detention. Although clearly one important aspect of reducing the incarceration rate at Rikers, other measures that get to the heart of the bail decision and the pre-trial process must also be addressed.  A drastic increase in programs and policies to address mental illness, poverty, addiction, homelessness, and widespread discrimination would go a long way to doing the decreasing incarceration by stopping the cycle of incarceration and reducing the chance of re-arrest while improving the life circumstances of poor people of color in NYC .

We look forward to working with you to achieve these goals. If you have any questions, please do not hesitate to contact me at ylee@bds.org or 718-254-0700 ext. 104.

[1] Mayor’s Management Report, available at http://www1.nyc.gov/assets/doc/downloads/pdf/MMR_FY15_FINAL.pdf

[2] Rikers Island Population Demographics, FY16 Qtr 4, available at http://www1.nyc.gov/assets/doc/downloads/pdf/FY16_4TH_QUARTER_INTRO_766_ADP_ADMITS.PDF.

[3] Press Release: Mayor de Blasio and Chief Judge Lippman Announce Justice Reboot, an Initiative to Modernize the Criminal Justice System, Office of the Mayor, April 14, 2015, available at http://www1.nyc.gov/office-of-the-mayor/news/235-15/mayor-de-blasio-chief-judge-lippman-justice-reboot-initiative-modernize-the.

[4] Calvin Johnson, Mathilde Laisne, & Jon Wool, Criminal Justice: Changing Course on Incarceration, Data Center Research (June 2015), available at https://s3.amazonaws.com/gnocdc/reports/The+Data+Center_NOI10_Changing+Course+on+Incarceration.pdf.

BDS EDUCATION UNIT SUPERVISING ATTORNEY KEREN FARKAS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON EDUCATIONAL SERVICES FOR DETAINED AND PLACED YOUTH

TESTIMONY OF:

Keren Farkas – Supervising Attorney, Education Unit

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committees on Juvenile Justice, Education, and Fire and Criminal Justice Services

Oversight Hearing on

Educational Services for Detained and Placed Youth

November 30, 2016

My name is Keren Farkas. I am the head of Brooklyn Defender Services (BDS) education unit. BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for tens of thousands of clients in Brooklyn every year. I thank the City Council Committees on Juvenile Justice, Education, and Fire and Criminal Justice Services for the opportunity to testify today about the quality of educational services for detained and placed youth.

BDS is fortunate to have the support of the City Council, as well as other elected officials and the Office of Court Administration, to supplement the services we provide as a public defender office in Brooklyn.  We have developed a model of specialization to best represent certain types of clients, including adolescents.  Through specialized units of the office, we provide extensive wrap-around services that meet the needs of these traditionally under-served clients in a comprehensive way. This includes helping young people and their families navigate the public education bureaucracy during and after contact with the criminal justice and family court system.

BDS’ Education Unit provides legal representation and informal advocacy to our school-age clients. We work with young people impacted by the child welfare and criminal justice systems, including youth detained at Rikers, Horizons and Crossroads.  As a legal and social work team, we work to improve our clients’ access to education, and a significant portion of our advocacy relates to school discipline, special education, reentry and alternative pathways to graduation.

BDS is grateful to the City Council and Councilmember Dromm for introducing a new piece of legislation, Int. No. 1148, that would require the Department of Education to report to City Council about East River Academy. We support the legislation and hope the enhanced transparency will lead to better educational services and outcomes for youth at Rikers. I will conclude my testimony with several brief recommendations that we believe will strengthen Int. No. 1148. First, however, my comments will highlight the education barriers that we see our school age clients at Rikers Island experience.

Educational Services for Youth Incarcerated on Rikers Island
The best way that the City could help our youth would be to avoid sending them to Rikers, the horrors of which are well documented, and focus on diverting them from the criminal justice system altogether. However, in the interim, the City can do better to ensure that our young people obtain the education that they are entitled to under law.

First, I want to emphasize that we continuously find the Department of Education staff at East River Academy on Rikers Island to be caring and dedicated.  We see them treat our clients with respect and strive to do the very best that they can, particularly given the challenges that educating young people in a jail environment pose. Further, we are encouraged by the various improvements at East River Academy over the past year. These developments include enrollment increases among 18-21 year olds, greater access to vocational education, and targeted resources to address the school reentry challenges our clients face. We also understand that, starting next quarter, students at East River Academy can earn up to five, rather than three and half, credits per quarter. We attribute these improvements to DOE’s District 79 Leadership as well as collaboration from the DOE Adolescent Advisory Board, of which BDS is a member. That said, the following are our six areas of particular concern:

Problem 1: DOC Interference with Education Access
The majority of BDS’ 18-21 year old clients at Rikers are detained in the George Motchan Detention Center (GMDC). Young people at GMDC regularly report to us that they are not transported to school. We understand that corrections officers are required to call for each enrolled student in their housing unit and transport the student to the school floor. However, we often hear of breakdowns in this system. For instance, some clients have reported that the Corrections Officers do not call for students at all or pick up students late in the school day so they miss class time. Others report of frequent, sometimes multiple day, lock-downs, where all students are denied school access. Because DOC is not transparent about the frequency of the lock-downs, we cannot assess the extent that our clients are denied school hours, but we are concerned that it is significant.

We are also appalled that DOC deducts class time from out-of-cell time allotment for adolescents in Enhanced Supervision Housing (ESH), a highly restrictive new form of solitary confinement. This practice discourages youth in the ESH from pursuing their education.

We have also heard that DOC staff discourages clients from attending school due to concerns of violence between inmates during transport or at school. While there is an acknowledged problem of violence at Rikers that must be addressed, particularly at GMDC. DOC interference with the student’s decision to participate in school is neither appropriate nor the right solution to the problem. As an example, I will share a client story from last week:

A is serving a year sentence on Rikers Island. A explained to her BDS social worker that she feels frustrated because she feels as though DOCS is trying to push her out of school. Just last week they brought her paperwork to “sign herself out” of school. She told her social worker that she refused to sign them and continues to tell them that she wants to attend school. Apparently, DOCS has determined that her housing unit has problems with another unit. Because of this “beef” they won’t allow A’s housing unit to move when the other unit’s residents are on the school floor or in the hall. A was called last week for school but hasn’t been called since. She is frustrated as she is extremely motivated to attend school while she is in for the next several months, but will not be able to get an education, even though she has the time, if the guards refuse to take her to the school. A already has 15 credits towards her Regents Diploma.

We also have clients at GMDC who choose not to go to school at all because they are concerned about violence. Notably, our 16- and 17-year-old clients housed at the Robert N. Davoren Complex (RNDC) do not report similar barriers attending school, likely due in large part, to the fact that school attendance is mandatory for this age range.

Solution: The City should call upon DOC and DOE to decentralize the schools, particularly at GMDC, and allow young people who want to learn the opportunity to do so in their units.

Problem 2: Youth at OBCC do not even have a school that they can attend
BDS still has 18-21 year old clients at Otis Bantum Correctional Center (OBCC). While these young adults are school-age and many are interested in preparing for their High School Equivalency or Regents Diploma, East River Academy is not available at OBCC. Recently, several clients housed at OBCC have reported that they want to attend school, but have chosen to remain at OBCC, rather than transfer to GMDC, because of concerns of violence. In several instances, they were explicitly discouraged from transferring to GMDC by DOC staff, but not provided with an educational alternative at OBCC. Our clients should not have to choose between safety and school opportunity.

Solution: DOC should be required to create a school in any facility where youth are held, including OBCC.

Problem 3: Too many of our clients are significantly behind in their reading and math levels and require intervention to succeed in school
Many of our clients struggle in school because their reading and math skills are far below grade level. Reading is the building block of learning, and without it, our clients are at a terrible deficit that fosters recidivism, not opportunity. Likewise, limited math skills contribute to low self-confidence, leading to truancy and school disengagement.  East River Academy can be an opportunity to re-engage students in school and provide them with the building blocks to succeed. In order to break the cycle of incarceration and poverty, our clients need access to interventions that will provide additional and targeted support in reading and math skills. We are hopeful that the data that will be provided per Int. No. 1148 will help inform the need to allocate resources to fund these interventions.

Solution: The City Council should fund intensive, research-based remedial reading and math instruction, including additional staffing such as reading specialist positions at East River Academy, to ensure that all of the youth who attend have the opportunity to improve their basic reading and math skills.

Problem 4: Difficult for youth to accrue credits
The East River Academy can be an extremely positive motivator for our clients incarcerated on Rikers Island. When they learn a new skill or receive a certificate of achievement in school, they are proud of their accomplishments and feel excited to continue their education.

However, too many of our clients leave East River Academy empty handed, without academic credits despite participation in class and coursework. We find that this problem occurs for a variety of reasons. Sometimes transcripts are not appropriately or timely updated with notations of full or partial course completion. Difficulties also arise when students return to the community mid-year, because the community school system uses a two semester system while East River Academy now uses trimesters. The timing of a student’s arrival at East River Academy and return to the community can then dictate whether they will receive credits, even if they accrued a substantial amount of seat time. This is harmful as it confuses and discourages the youth. It also becomes wasted time that could have been spent working towards their high school diploma. Another problem students face is that foreign language and elective courses do not appear to be regularly offered. We hope that the additional resources targeted at reentry support will address this problem.

Solution: The City Council should direct the DOE to create guidelines on mid-year credit accumulation and make it possible for youth at East River Academy to obtain partial credits , even if a young person does not complete a module in its entirety.

Problem 5: Youth are often tracked or encouraged to pursue high school equivalency (HSE) courses, even if they are strong candidates for high school diplomas
BDS’s education team works diligently to place our clients in schools that meet their individual needs to ensure future academic success and end the cycle of poverty and incarceration. This advocacy includes our clients on Rikers Island.  We have helped many students enroll in community schools after finishing their time on Rikers, even those that are over-age and under credited.

While at East River Academy, we find that many of our clients are tracked or encouraged to pursue the HSE, rather than obtain their high school diploma. While we appreciate that HSE may be the appropriate choice for a significant number of students, many of our clients express that they would prefer to pursue their high school diploma. With the credit recovery options in the community, including transfer schools, Young Adult Boroughs Centers and some specialized charter schools, it is possible for an over-age under credited student to earn a Regents Diploma. Further, we find that our clients who are connected with the specialized credit recovery schools upon reentry find supportive school settings that can be critical in helping the youth to forge a new path for herself when she returns to the community.

Solution: The counselors at East River Academy should be encouraged to discuss the benefits of high school diplomas with all enrolled students. The City should collaborate with the newly launched Youth Reentry Network to ensure that all youth at East River Academy have access to reentry services, including support and encouragement to continue their education upon return to their communities.

Problem 6: Guards use pepper spray against our clients in the classroom
BDS staff has received multiple reports of students in East River Academy being sprayed with MK9 pepper spray by guards. Our clients report that the spray spreads through the entire school, disrupting class and movement. School counselors have complained as well. It is our experience that MK9 pepper spray can be harmful and is used far too liberally as a matter of first resort, rather than once all other options for managing a situation have been considered.

Solution: The City Council should ban the use of pepper spray in all DOC facilities, or at the very least, correction staff should not be allowed to use MK9 in East River Academy.  Pepper spray is harmful to the students and staff and not conducive to a healthy school environment that inspires learning.

Int. 1148
BDS supports Int. No. 1148. The bill will go a long way towards improving DOE reporting to provide the Council and the public with important information about the quality and parity of education that youth receive at the East River Academy.

We have several brief suggestions to strengthen the Bill:

Suggestions 1: Specifying Use of Force – In Sections 8-11, the bill requires the DOE to report on incidents of use of force during educational programming. As currently written, the definitions of use of force within a single category vary widely. For example, use of force A can mean a chipped tooth or a ruptured spleen, which are very different injuries. Instead of reporting “use of force A” the DOE should be required to report the injury with greater specificity. See 9-141(b)(8-11).

Suggestion 2: Diploma vs. High School Equivalency Track – We appreciate the request for information regarding achievement of HSE and Regents Diploma in Sections 12-14. We suggest modifying the language in Section 12 to specify whether a Regents Diploma was achieved and whether one of the “safety net” options were utilized. Additionally, the DOE should report the percentage of adolescents and young adults, respectively, on the Regents Diploma vs. HSE track.

Suggestion 3: Attendance and Participation– The information requested regarding enrollment in sections 1-2 and 16-17 will be illuminating. We ask the DOE to also report on attendance of enrolled adolescents and young adults. Sections 18-19 reference to “participation” may be encompassing attendance. If so, we suggest “participating” be clearly defined in the Definitions section.

Suggestion 4: Teacher to student ratio – In addition to data regarding teacher to student ratio, as noted in Section 22, the DOE should be required to report on the absolute number and ratios of special education teachers, paraprofessionals, reading specialists and related service providers.

Suggestion 5: Credit Accrual – We appreciate the request for data about credit accumulation in Section 25. Because credit accrual has historically been a confusing and difficult matter for students at East River Academy, we ask that “sufficient period of time,” be defined. We also ask that the DOE report on the average and median seat time accrued by students who were not present for the “sufficient period of time.”

Suggestion 6: Special Education at East River Academy – Greater transparency regarding special education services is certainly needed. In addition to the information already requested, which should be updated to refer to Special Education Plan (SEP), we ask the DOE to specify the (1) the number of students entering with an IEP, (2) the number of students who received an initial special education evaluation while at East River Academy, (3) the number of students recommended for specific services, including classroom settings and related services, and (4) the classifications of students at East River Academy. We hope this information will help ensure the appropriate resources are provided to meet the needs of special education students at East River Academy.

Conclusion
Thank you for your consideration of my comments. I am grateful to the Council for inviting me to testify about the challenges that my incarcerated youth clients find in accessing educational services on Rikers.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 292) or kfarkas@bds.org.

BDS FAMILY DEFENSE DIRECTOR LAUREN SHAPIRO SUBMITS TESTIMONY WITH THE BRONX DEFENDERS’ FAMILY DEFENSE MANAGING DIRECTOR EMMA KETTERINGHAM TO THE NEW YORK CITY COUNCIL ON CHILD WELFARE PROCEEDINGS

TESTIMONY OF:

Lauren Shapiro

Director, Family Defense Practice

BROOKLYN DEFENDER SERVICES

 

Emma S. Ketteringham

Managing Director, Family Defense Practice

THE BRONX DEFENDERS

 

Presented before

The New York City Council

Committee on General Welfare

Oversight Hearing on

Child Abuse Cases and the Various City Touchpoints for Families

 October 31, 2016

Lauren Shapiro is the Director of the Family Defense Practice at Brooklyn Defender Services (BDS) and Emma Ketteringham is the Managing Director of the Family Defense Practice at The Bronx Defenders (BXD).  Both BDS and BXD are public defender organizations that provide inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The Family Defense practices together have represented more than 16,000 clients since their inception in 2007 and have helped thousands of children either remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with Child Protective Service and foster care agency workers.

We thank the New York City Council Committee on General Welfare and, in particular, Chair Stephen Levin, for the opportunity to testify today about the points at which child-welfare involved families interact with various City services.  The Administration for Children’s Services (ACS) affects the lives of thousands of children each year – most of whom are low income and African American or Latina – and it is critical that the City Council regularly review and monitor ACS and ensure that it remains accountable for its actions.  At the same time, we appreciate the efforts of the many hard-working staff at ACS and recognize the enormity and complexity of their charge to protect the safety of children while at the same time make efforts to give families the help and services they need to remain together.

Recognizing the Role of Poverty in Child Welfare Cases
In setting and implementing child welfare policy, policymakers must keep in mind what stories in the media ignore: that the vast majority of child welfare cases in Family Court involve allegations of neglect, not abuse, and almost all child welfare cases are related to poverty and the stress that poverty brings to families struggling to survive.[1]  While we are making a number of substantive recommendations in our testimony today, we believe that any conversation about the so-called “failures of the child welfare system” must begin and end with the understanding that the vast majority of families would never become involved with the child welfare system but for their poverty.  Most parents and caregivers become involved with child welfare because of allegations related to failing to provide adequate food, shelter, medical care or child care– reflecting conditions of poverty rather than parental failure or ill will.  Studies have shown that families who are “below the poverty line are 22 times more likely to be involved in the child protection system than families with incomes slightly above it.”[2]  In 2014, the journal Pediatrics published a nationwide study conducted by Cornell University that further clarified the links between poverty and child welfare.[3]   John Eckenrode, one of the study’s authors, found that “reducing poverty and inequality would be the single most effective way to prevent maltreatment of children.”[4]  Indeed, “poverty—not the kind or severity of child mistreatment—is the leading predictor of both placement into foster care and the amount of time that children spend” separated from their parents.[5]

Racial Disparities in the Child Welfare System
The families that populate the child protection system are also disproportionately families of color.  The child welfare system remains once of the most racially segregated institutions in American and the racial disparity of children in foster care must be considered as we fashion changes to the system.  For more than a decade, black children have made up the majority of children in the United States child protection system, despite making up a relatively small portion of the nation’s population. A national study of child protective services by the U.S. Department of Health and Human Services reported that “[m]inority children, and in particular African American children, are more likely to be in foster care placement than receive in-home services, even when they have the same problems and characteristics as white children.”[6]  While racial disproportionality exists in foster care nationally, statistics from New York City illuminate the extent to which foster care placements are concentrated in poor communities of color:  “In 2008, African American children accounted for 27 percent of the children under the age of eighteen in the city but comprised a staggering 57.1 percent of the foster care population. In contrast, 24 percent of the children under age eighteen in New York City were white, but white children comprised only 4 percent of the foster care population.”[7] Data released by ACS for 2013 was nearly identical to the 2008 data.[8]

Family Preservation Should Remain the Priority because Children do Better Overall Remaining with their Families than when they are Placed in Foster Care
Singling out horrific cases and focusing on increased surveillance of families rarely results in the kind of thoughtful reforms that keep children safe and families strong.  A response to Zymere Perkin’s tragic death that relies upon increased reporting, investigations and removals of children from their homes will further reinforce the vulnerability of the families in the system and contribute to the system’s racial disparity. This approach will also lead to the abandonment of the government’s legal and moral obligation to ensure that children are not wrongfully removed from their families and communities; it will be at the expense of opportunities to make the deeper, more systemic changes that will save and improve the lives of the majority of New York City’s children.

Although most foster parents are well intentioned and provide a safe environment, there is overwhelming evidence of the negative outcomes of foster care placements. As the VERA Institute of Justice noted, “research shows that entry into foster care raises the risk of long-term adverse effects on children compared to socioeconomically similar children who are not removed, including poor school performance, homelessness, arrest, chemical dependency, and mental and physical illness.”[9]  In the words of Molly McGrath Tierney, Director of the Baltimore City Department of Social Services: “Awful things happen to children in foster care. Short-term, their outcomes for important things like health and education are abysmal and long-term, it just gets worse. Kids that grew up in foster care [are] overwhelmingly destined for the penitentiary.”[10]

Children placed in foster care are more likely to experience psychopathology than children who are not in foster care, with children in foster care being between 2.7 and 4.5 times more likely to be prescribed psychotropic medication than children not in foster care, according to one study..[11]  Studies have found that rates of safety are actually worse for children in foster care than for those in family preservation programs.   For example, one study shows that children are actually twice as likely to die of abuse in foster care.[12]  New York State ranks the third worst for rates of substantiated or indicated reports of maltreatment of children in foster care.  Even these statistics are likely underestimations, as “abuse or neglect by foster parents is not investigated because agencies tolerate behavior from foster parents which would be unacceptable by birth parents.”[13]

Child-protection-involved children tend to leave foster care with more problems than when they entered care. Children exiting foster care have significantly more behavioral problems when compared with their own pre-placement measures of adaptation. Former foster children experience additional negative life outcomes, including higher teen birth rates and lower career earnings.[14]  Former foster children are also disproportionately likely to experience homelessness compared to the general population.[15]

Children who are on the margin of placement tend to have better outcomes when they remain at home as opposed to being placed in out-of-home care. In one study, a researcher looked at case records for more than 15,000 children, segregating the in-between cases where a real problem existed in the home, but the decision to remove could go either way.[16]  Despite the fact that the children who remained home did not get extraordinary help, on measure after measure the children left in their own homes fared better than comparably maltreated children placed in foster care. All of this evidence demonstrates that keeping children together with their parents, even within homes that are not ideal, is usually preferable to foster care placement.[17]

The adverse consequences of removal can be reduced by placing children who have been removed from their homes with relatives rather than in foster care with strangers. Children fostered by relatives—known as “kinship care”—have fewer behavioral problems than their foster care counterparts.[18]  They also demonstrate better development and better mental health functioning than children in non-kinship foster care.[19] Additionally, children cared for by relatives experience fewer disruptions and a better quality of life while in care: they have fewer placement moves, are more likely to remain in their own school, and are more likely to report liking their placement and wanting it to become permanent.[20]  However, most foster children are not placed with relatives; ACS reports that only a third of children in foster care in New York City are placed in kinship care.[21]  An approach that does not recognize how critical one’s family and home life are to healthy human development, even when troubled or full of challenges and adversity, harms rather than improves the welfare of children and families.

ACS Should Continue Policies to Reduce the Foster Care Census
ACS has worked diligently and successfully to reduce the number of children in foster care in all five boroughs over the past ten years. Since 2007, when the institutional providers for parent representation in New York City were created, the foster care census has been reduced from over 17,000 to under 9,000 children as of October 2016. We must continue in this direction, and not roll back any gains. Notably, there has been no evidence or indication of an increased occurrence in child abuse as the foster care census has dropped. This progress has been possible through the increased availability of preventive services to families in need of support, earlier identification of such families, and greater accountability within the Family Court Systems to ensuring that appropriate service plans are put in place.  These trends must be applauded and not rolled back in response to Zymere Perkin’s tragic death.

The City Must Not Implement Policies That Will Exacerbate the Vulnerability of Families
Since Zymere’s death last month, we have already seen a dramatic and frightening impact on our practices and the lives of child-welfare involved families in New York City. In the last few weeks, the number of emergency and court removals of children has increased, the filings of neglect cases have nearly doubled, and even important decisions about visitation and reunification of families are being affected by the current climate of fear to the detriment of many children.  We have received phone calls from fearful parents who have been investigated in the middle of the night and had their children roused from deep sleep and questioned based on non-emergency concerns.

Instead of relying on surveillance and removals and making the approach to working with the city’s poorest families more punitive, the City should be employing a strategy that encourages families to seek and get the help that they need to take care of their children.  When ACS reacts as they are now out of fear, seeking more removals and pitting case workers against parents in court proceedings, it has the effect of discouraging parents from seeking the help that they need.  For example, in Brooklyn last week, ACS received a call from a mother who stated she was overwhelmed, and was asking for help.  Instead of providing her with assistance, they removed her son, separated the family for three days, and came to court to seek approval to place her son with strangers in foster care.  Cases like this show parents that, when they need help, they cannot count on the city’s administration to provide it to them.  It instead encourages them to isolate and avoid seeking assistance and the help they need to address any risk to their children.  This only worsens outcomes for children.

Recommendations

(1) Continue And Expand ACS’s Commitment To Preventive Services
BXD and BDS strongly support increased funding for preventive services to avoid the need for children to be placed in foster care and to reduce the time children spend in care. In large measure, preventive service programs helped reduce the foster care population from almost 40,000 in 1999 to under 10,000 in New York City today. Keeping families together and children in their homes and communities with services in place, instead of placing children in foster care, prevents the harm and trauma of removing children from their families while saving tax-payer money. We also believe that preventive service programs can and should be delivered more effectively to help families provide safe and stable homes for their children and to reduce the number of children who enter foster care.

For more information and specific recommendations about ACS’s provision of preventive services, please see BDS’s testimony before this committee on March 17, 2015. A copy is available online at: http://bds.org/testimony-before-new-york-city-council-on-acs-dhs-preliminary-fy2016-budget/.

(2) ACS Should Transition To A System Where Child Protective Workers Are Required To Have Social Work Degrees
Child protective workers who conduct initial investigations must make vital assessments about the complex issues many families face, such as domestic violence, mental illness, and substance abuse.  ACS child protective workers rarely have the credentials of a social work degree and are not adequately trained to make such determinations. They also may lack the expertise and time to help parents navigate complex bureaucracies, such as public assistance, housing, the shelter system, childcare assistance, Medicaid and the Department of Education. This lack of expertise can result in misguided decision-making and improper advice given to families, which jeopardizes family stability. Front-line staff must have adequate training and preparation to be able to truly help families.

Since the late 1980s studies have found that workers with either a BSW or MSW degree in social work have better outcomes than child protective workers in the same jobs who hold non-social work degrees.[22] They received higher performance ratings from supervisors, especially in complex cases; were more effective in permanency planning; remained in the employ of agencies longer; felt safer making home visits alone; and spent less time on paperwork than their non-social work degreed counterparts.[23]  Social workers have specific skills and knowledge in working with individuals, families, groups, organizations and communities that grounds the social worker in a much broader understanding of client needs.

Recommendation: Our experiences in the Bronx and Brooklyn are in line with national research and lead us to believe that ACS should prioritize hiring trained, credentialed social workers for child protective positions.

(3) The Housing Crisis In New York City Must Be Addressed And ACS Should Help Homeless Families And Families Living In Unsafe Housing Conditions.
Over a third of our clients live in unsafe housing, family shelters, doubled up, and/or are moving from place to place. Addressing the affordable housing crisis is critical to addressing homelessness and its attendant risks to children.[24]  The data and research on the experiences of homeless children shows that homelessness creates risks to the physical and emotional well-being and educational success of children. For example, children experiencing homelessness have an increased risk of illness compared to children who are not homeless, they suffer disproportionately from food insecurity, as they are twice as likely to go hungry as non-homeless children, and, being homeless has also been demonstrated to be harmful to children’s emotional well-being. Homelessness also causes traumatic disruptions in the lives of children and increases children’s vulnerability to mental illness.

In practice, ACS files neglect petitions against families living in unsuitable housing. Rather than assist families in securing safer living conditions or addressing housing concerns directly, ACS workers frequently suggest that families leave homes deemed to be in poor condition (including NYCHA apartments) to go into the shelter system. While this suggestion meets many of ACS’ short-term goals for ensuring a safe environment for children, it creates an added burden on the already-overburdened NYC shelter system, and there are long-term negative consequences for family stability: the shelter system no longer provides permanent housing options to families; living in many of the family shelters in New York is harmful to children and families; and such a move often disrupts children’s education, as children still are often forced to change schools or travel long distances to get to school.  Rather than address the problem of family homelessness, the system offers a family further displacement in a city shelter or foster care.  Lack of adequate housing also makes it difficult for clients to comply with mandated services, causing children to be placed in foster care and/or delaying family reunification when children are already in foster care.

(a) ACS should advocate with DHS regarding shelter eligibility issues
BDS wrote extensively on this issue for the March 17, 2015 hearing. Please see specific policy recommendations and client stories on areas for improved coordination between ACS and DHS in our testimony available here: http://bds.org/testimony-before-new-york-city-council-on-acs-dhs-preliminary-fy2016-budget/.

(b) Housing Subsidies
ACS offers a housing subsidy for certain families, but it is currently available only in a very few cases, and is woefully inadequate to meet the realistic needs of the families we all serve.  The state-funded housing subsidy of $300 per month for families with active foster care or preventive cases is not enough to enable families to actually find affordable apartments in New York City.  City Council recently recognized the need for increased housing subsidies in passing Resolution 1073-2016, a resolution calling upon the New York State Legislature to pass, and the Governor to sign legislation that would increase the amount of housing subsidy from $300 to $600 per month, and extend the age eligibility from 21 to 24 for youth who have aged out of foster care.

In our experience, preventive services workers and even ACS workers are generally unaware that the subsidy exists, and those who are aware of it explain that it is not a useful tool for keeping children out of foster care.  Even workers who are aware of the existence of the housing subsidy are often unaware that it can be used to provide families with lump sum payments for rental arrears, repairs, and other one-time expenses to help a family obtain or preserve stable housing.  As a result, preventive workers often advise families to enter the shelter system — an intervention that is far more costly and harmful to family stability — instead of assisting them in preserving stable permanent housing. Ultimately, the state could save money by helping people pay rent, rather than paying $3,000 per month for a child in foster care and even higher sums for family stays in emergency shelters, yet they continue to pursue a punitive approach to poverty.

Recommendations: ACS should join forces with the City Council in lobbying the State for an increase in this subsidy to meet families’ needs or should supplement it with City funding. In the interim, ACS should better train its employees about the benefits of the subsidy.

(4) Identify High-Quality Services For Parents And Caregivers With Developmental Disabilities And Mental Illness
Another critical area that the City should be looking at is providing and improving services to parents and caregivers with Intellectual or Developmental Disabilities and mental health issues.  We are concerned about the number of clients we see where the only allegation against them in an Article 10 case is their cognitive delays or mental illness; these cases represent a failure of the system. The National Council on Disability reports that removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; and where the parent has an intellectual disability, 40 percent to 80 percent nationwide.[25] Many parents struggling with these issues end up in the child welfare system because there are little to no resources available to assess and appropriately evaluate parenting capacity, and no resources to support parents to keep their children in the home.

ACS should not be filing neglect cases against these families but should instead be working with the appropriate City and State agencies to ensure that they get the ongoing support and services that they need. Very often the families have received inadequate and insufficient evaluations. Although these families can function independently with ongoing supportive services, the services that child protection currently offers these families, such as short-term preventive services, are inadequate and inappropriate to meet these families’ needs. In a letter dated January 29, 2015, the U.S. Department of Justice (DOJ) found that the Massachusetts Department of Children and Families (DCF) had violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 193 by denying a mother with developmental disabilities opportunities to benefit from support and services to achieve reunification.   Among other issues, the DOJ found that DCF failed to provide appropriate policies and training for social workers to understand their obligation to ensure the civil rights of parents with disabilities.[26]  New York City’s child welfare system faces many of the same deficiencies.

Recommendation: Where a parent presents to ACS with a possible intellectual disability or mental illness, ACS should assess whether the parent is receiving or eligible to receive any supportive services related to the perceived disability, coordinate the referral and evaluation process for the parent to receive appropriate services, and provide transitional services to the parent until those disability-related services are put in place. The process of applying for state assistance through OPWDD can be difficult to navigate, and ACS should be familiar with this application process and assist parents with establishing their eligibility.  ACS staff should be trained in reasonable accommodations that people with intellectual disabilities may need, such as more time allotted for case conferences and casework contacts, more specific assistance with traveling to appointments and time management, and specific services and classes that are tailored to the needs parents in this population.  ACS staff should also be trained in how to approach and talk to parents with a perceived disability, so as not to alienate parents.  In one of our cases where our client has a developmental delay, the case worker approached her in a very threatening manner, telling her that she was going to take her child.  This caused our client to be fearful and flee, resulting in worse outcomes for the family.   Had the worker approached her with sensitivity and offering assistance, the outcome likely would have been different.

(5) The City Should Provide Funding For Parents And Caregivers To Have Legal Representation At Child Safety Conferences
As court-based advocates, we often meet our clients after they have already been in contact with city agencies for months, or even years.  They have often already been interviewed by case workers and detectives, evaluated by mental health professionals, and given numerous directions to show up at conferences, meetings, or other events, with little understanding of the context or consequences.  In our experience, once these families enter the court system and parents are assigned attorneys, we are often able to smooth out misunderstandings, provide our clients with advice on how to better navigate systems, and connect them to services tailored to their needs.  By the time a family is coming to Court, however, it is often too late to avert the placement of a child into foster care or the separation of families.  If parents were provided with independent advice and counsel earlier in the process, it could help to avert some of these family separations, and likely would avert many filings, thereby saving court time and resources and ensuring that cases that needed to come before judges moved more quickly and received more attention.

Child Safety Conferences (CSC’s) are an important mechanism used by ACS during a child welfare investigation to determine child safety when ACS is considering filing a petition in court.  At the conference, which is supposed to include the family, a safety plan is developed, including recommendations for services, and a determination is made as to whether a case will be filed in court and whether foster care placement will be recommended. In some cases children have already been removed or children are removed at the conference.  At the CSC, a parent or caregiver is often in the middle of a crisis, terrified that she will lose her children, and unaware of her rights and responsibilities during a child welfare investigation.  Too often a critical opportunity to engage a family and conduct an appropriate needs’ assessment is lost and the relationship between a parent and the agency breaks down.

CSCs would be more successful and traumatic removals of children would be avoided, if parents were advised of their rights and responsibilities by a parent advocate or social worker who is associated with an attorney at this early stage.  Presently, no legal organization is contracted to provide parents with representation at CSCs and before a case is filed in court.  Parents are assigned a lawyer only once an abuse or neglect case is filed in Family Court.  Parents receive legal counsel only after the CSC and often after their children have been placed in foster care.  Once an attorney is assigned, an appropriate safety plan can be developed allowing the children to remain safely at home.  Institutional providers also have success averting removals at CSC’s where children are under Court-Ordered Supervision.  We believe the success we have achieved can be replicated with pre-petition advocacy.

Although not funded by the City, family defense providers have been able to provide some families with a small amount of pre-petition advocacy with good results for families.  The Center for Family Representation (CFR) achieved positive outcomes for families when it provided representation to parents and caregivers in CSCs (then called PDMs) through Project Engage and their work is discussed in their testimony submitted today.  In addition, through its Healthy Mothers, Healthy Babies program funded by a small grant, as well as its hotline and community intake services, BXD has provided pre-petition advocacy to parents and caregivers during a child welfare investigation and at a CSC.  The results show the promise of this approach. In FY 2015, BXD provided targeted social worker support and advocacy to 197 pregnant mothers who had older children in foster care.  Fifty of those women gave birth to babies who were at great risk of joining their siblings in foster care.  Once they were born, a CSC was convened and an advocate from BXD attended.  BXD collaborated with the foster care agency overseeing the older children and ensured that all of the women enrolled in HMHB were referred to prenatal care and evidence-based services including mother-child dyadic therapy, and substance abuse or mental health services if necessary.  BXD also provided assistance with housing and public assistance to further stabilize the lives of the expectant mothers.  Of the 50 births to the women engaged with HMHB, 66% were never removed from their mother’s care, 20% were removed but placed with their father or another relative identified by HMHB, and only 7% were placed in non-kinship care.   These results demonstrate that pre-petition advocacy saves families from the trauma of separation and reduces legal costs and foster care placements.

In 2015, The Bronx Defenders social work staff provided pre-filing advocacy to 183 clients.  BXD’s advocacy helped preserve families and avoid the trauma of unnecessary family disruption for hundreds of children. Because of the information provided by advocates during child welfare investigations in 183 cases, 142 of these cases resulted in connecting families with preventive service providers, such as drug treatment, mental health services, homemakers, visiting nurses or daycare facilities, to help parents address the needs that exist.  Moreover, children in 157 families were not placed in foster care.

Recommendation: The City should consider funding pre-petition advocacy in all five boroughs based on the results and lessons learned from small pilot projects conducted by CFR and BXD and the participation at CSC’s of all the parent representation providers.

(6) Assess And Address The Continuing Problem Of Racial Disproportionality In New York City’s Child Welfare System
New York City’s child welfare system is almost exclusively a system for families of color, as discussed previously. In the past nine years that our organizations have been representing parents in Article 10 cases, racial disparities have remained static. As in the criminal justice system, racially biased enforcement of the Family Court Act breeds distrust for child protective services agencies in poor neighborhoods of color. A woman named Jameelah with a child welfare case in New Jersey explains,  “You’ll see a Caucasian person in a supermarket and let’s say their children don’t have on a hat or shoes and its cold outside. Let that happen to an African American. Before you know it they’re reading your license plate and, boom, you have a social worker knocking at your door.”[27] Our clients in Brooklyn and the Bronx express similar sentiments to our attorneys and social workers regularly. Troubling racial disparities should cause ACS to remove children from their homes with more caution, not less.

Recommendation: If ACS is truly committed to diminishing and eventually eliminating racial disparities, removals should only be on the table in the most extreme cases. Otherwise, the communities that we serve will continue to view ACS as racially biased.

(7) Do Not Implement Predictive Analytics In New York City’s Child Welfare System.
Over the last year, governments and child welfare agencies across the country have begun to consider the utility of predictive analytics in the child welfare context. We strongly urge ACS and the Council not to pursue this avenue. As we have seen in the criminal justice context, risk assessment instruments are plagued by biases that reflect the prejudices or beliefs of whoever created or scored the instrument. ProPublica looked at one of the most widely used risk-assessment programs and how it fared in Broward County, Fla.[28] Researchers found that the risk assessment instrument was only accurate about 61 percent of the time, and that it treated blacks and whites differently. Black defendants were twice as likely to be rated as “high risk” incorrectly, meaning they did not go on to reoffend.  Meanwhile white defendants were twice as likely to be incorrectly rated as low risk and yet go on to reoffend.

Similar biases would be built into any child welfare analytics and exacerbate the severe racial disparities that exist already. We oppose any use of predictive analytics which substitutes stereotypes, bias and presumptions for the type of comprehensive case-by-case, fact specific assessments that families need and deserve, including an assessment of family strengths and progress in their lives.

Recommendation: Given the previously-discussed stark disproportionality we already see in the system, we implore ACS not to employ this untested tool and unwittingly embed racial disparity deeper into this system’s functioning.

(8) Stop the Criminalization of Poverty
Every day, our criminal defense practices serve low-income New Yorkers who are arrested, prosecuted and incarcerated because of their economic condition, with clear adverse impacts on the ability of affected individuals to care for their children. Arrests and prosecutions for poverty-based offenses such as fare evasion separate parents from their children every day. To our knowledge, the City does not track the number. However, we do know from the Osborne Association that 105,000 children in New York State have a parent incarcerated in prison or jail, and that this separation can have devastating consequences on the children. In this way, our City’s and State’s criminal justice policies and priorities are in direct contravention of the City’s other efforts toward preserving strong, healthy families.

Our clients spend countless hours in court, and, in many cases, far longer stretches in jail or prison. They suffer diminished work, education, and housing opportunities due to publicly-accessible criminal records. Many experience severe trauma, especially those who are incarcerated in New York’s notoriously abusive prisons and jails, which only compounds the intergenerational cycles of trauma that are at the root of the most serious child welfare proceedings.

Recommendation: The City should track the number of parents in NYC Department of Correction facilities and work with criminal court system stakeholders like BDS and BXD to ensure that pre-trial detention and incarceration sentences are rarely used in cases involving parents or caregivers.

(9) Make ACS More Accountable To The Communities It Serves
Another important way to improve the child welfare system is to make ACS more accountable to the communities it serves. Stakeholders, including parents and parent attorneys, should be directly involved whenever ACS develops and implements large scale policy changes or practice mandates, such as those that are being considered today.   Polices and changes should be made and implemented after thoughtful consideration and in collaboration with stakeholders.

Lastly, we address the recent DOI report and respond to the assessments and recommendations laid out there.

The May 2016 DOI Report
In May 2016, the NYC Department of Investigation issued a report and recommendations based on a review of three cases with ACS involvement where there was either a fatality or near fatality.  The evaluation of the individual cases appears to be based on a review of records in the three cases and interviews with professionals involved. We question the validity of system-wide recommendations based on only three cases out of thousands and without talking to all of the parties involved including, in one case, BDS who represented one of the parents.  In that case, which involved a child who died “under suspicious circumstances, ” the report fails to mention that the child was living in a City shelter and the conditions of the shelter are likely to be blamed for the child’s death.  We question why this case involving an accidental death of a child is even included in the DOI report. The report is also filled with subjective interpretations of facts which should not be the basis for systemic changes.

The report criticizes ACS for the lack of documentation and timing of supervisory reviews. While intensive supervision of CPS workers is absolutely crucial to the quality of casework practice, the focus of any evaluation should be on the substance and quality of decision-making, not on adherence to documentation and time frame rules.

We are also concerned about the recommendations suggesting taking appropriate disciplinary actions against staff. While disciplinary action for violating rules, such as falsification of records, may be warranted in some cases, we are concerned about this reaction to tragedies (such as in the recent case of Zymere Perkins) because it scapegoats individual caseworkers for systemic problems, and encourages the overreliance on filing cases and removing children because workers and supervisors are afraid. As noted above, removals into foster care and out of the home harm children and families and should never be the go-to response to tragedy.

The report also finds that ACS failed to adequately oversee its foster care agency providers. While we understand ACS’s monitoring role of foster care agencies and how important it is for ACS to ensure that agencies are complying with ACS policies and regulations and with the law, such as providing reasonable efforts for reunification and ensuring timely reunification, it is important to recognize that the case planners at the foster care agencies are the workers who are the most familiar with what is happening with a family on a day-to-day basis.  As such, case planners are often in the best position to make decisions about the family.  Increased monitoring of agencies should not result in more barriers to family reunification when that is in the children’s best interests.  We agree with ACS that DOI should not be the body that ACS reports to regarding improved oversight and appreciate the opportunity ACS has given the public recently to comment on its proposed Integrated Family Team Conference Policy. We hope that community stakeholders will be involved in ongoing implementation and review of the policy as our clients experience the impact of these policies on a day-to-day basis.

In addition, the report raises the issue of whether foster care agencies are timely filing petitions to terminate parental rights and argues that there are many children in foster care where petitions should have been filed where exceptions to filing are not documented.  Based on our experience in the field, we are confident that these cases generally do meet the required exceptions, including that the children are in kinship placements.  However, it is possible that these exceptions are just not clearly documented at service plan reviews and we agree that they should be documented.  Finally, the report recommends collecting and sharing additional data points with DOI.  We would request that stakeholders be involved in determining the data points and that the information be shared widely.

Conclusion
Our proposals would not only strengthen the system in these key areas, ensuring that children are able to remain with their families in safe, secure and stable environments, but would also help enable the child welfare system to leverage available resources in the most cost-effective and impactful ways possible. We believe that following these suggestions will result in more stable families with access to the resources they need.

Once again, we are grateful to the Council for your attention to this important issue. Please do not hesitate to reach out to Lauren Shapiro at lshapiro@bds.org or (917) 204-2568 or Emma Ketteringham at emmak@bronxdefenders.org or (718) 508-3468 with any questions.

[1] New York City, Keeping Track Online: The Status of New York City Children (2013), available at http://data.cccnewyork.org/profile/location/1/city#1/new-york-city/1/1193,1194/a/a.

[2] Martin Guggenheim, Representing Parents In Child Welfare Cases: Advice and Guidance for Family Defenders, ed. Martin Guggenheim & Vivek S. Sankaran, 17 (2016).

[3] John Eckenrode et al, Income Inequality and Child Maltreatment in the United States, 133 Pediatrics 454 (2014), available at http://pediatrics.aappublications.org/content/133/3/454.

[4] H. Roger Segelken, Child abuse and neglect rise with income inequality, Cornell Chronicle, Feb. 11, 2014 available at http://www.news.cornell.edu/stories/2014/02/child-abuse-and-neglect-rise-income-inequality.

[5] Dorothy Roberts, Shattered Bonds: The Color of Child Welfare , 27(2003) (noting that “[p]overty—not the type or severity of maltreatment—is the single most important predictor of placement in foster care and the amount of time spent there.);  Leroy H. Pelton, The Continuing Role of Material Factors in Child Maltreatment and Placement, 41 Child Abuse & Neglect 30 (2014) (noting that “[c]hildren in foster care have been and continue to be placed there from predominantly impoverished families.”); Mark E. Courtney, The Costs of Child Protection in the Context of Welfare Reform, 8 The Future of Children 88, 95 (1998).

[6] Dorothy Roberts, Child Welfare and Civil Rights, 2013 U. Ill. L. Rev. 171, 172-73 (2003) (quoting Admin. for Children & Families, U.S, Dept. of Health and Human Servs., Child Maltreatment 1992: Reports from the States to the National Child Abuse and Neglect Data System, Executive Summary, Finding 4, at 3 (2000)).

[7] Tina Lee, Catching a Case: Inequality and Fear in New York City’s Child Welfare System, 5-6 (New Jersey: Rutgers University Press, 2016).

[8] See Roxana Saberi & Lisa Semel, In NY, black families more likely to be split by the foster care system, Al-Jazeera America, June 25, 2015, available at http://america.aljazeera.com/articles/2015/6/25/new-york-foster-care-system-racial-disparity.html (citing ACS data).

[9] Reva I. Allen, Alex Westerfelt, Irving Piliavin, & Thomas Porky McDonald, Assessing the Long Term Effects of Foster Care: A Research Synthesis (Child Welfare League of America, 1997), cited in Allon Yaroni, Ryan Shanahan, Randi Rosenblum, & Timothy Ross, Innovations in NC Health and Human Services Policy: Child Welfare Policy, VERA Institute of Justice Policy Briefs, Jan. 2014, available at http://www.nyc.gov/html/ceo/downloads/pdf/policybriefs/child-welfare-brief.pdf.

[10] Rethinking Foster Care: Molly McGrath Tierney at TEDxBaltimore 2014, available at http://tedxtalks.ted.com/video/Rethinking-Foster-Care-Molly-Mc.

[11] Children in foster care in Florida, Massachusetts, Michigan, Oregon, and Texas were prescribed psychotropic medications 2.7 to 4.5 times more often than children who were not in foster care. U.S. Gov’t Accountability Off.,GAO-12-8201, Foster Children HHS Guidance Could Help States Improve Oversight of Psychotropic Prescriptions 8 (2011).

[12] Richard Wexler, Take the Child and Run: Tales From the Age of ASFA, 36 New England L. Rev 129, 137 (2002).

[13] Compl. at 59-60, Eliza W. v. City of N.Y., No. 1:15-CV-05273-LTS-HBP, available at http://pubadvocate.nyc.gov/sites/advocate.nyc.gov/files/amended_complaint_12.28.2015.pdf (“Based on the most recent federal data available, New York State ranks 46th out of 48 states and territories for instances of substantiated or indicated maltreatment of children while in foster care. Put simply, children in New York are more likely to be harmed while under the state’s protection than children in virtually every other state.”)

[14] Joseph J. Doyle, Child Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 Am. Econ. Rev. 1583, 1584 (2007) [hereinafter “Doyle 2007”].

[15] See Patrick J. Fowler et al., Pathways to and From Homelessness and Associated Psychosocial Outcomes Among Adolescents Leaving the Foster Care System, 99 Am. J. of Pub. Health 1453 (2009).

[16] See Doyle 2008, supra note 14.

[17] Id. at 766-67.

[18] David Rubin et al., The Impact of Kinship Care on Behavioral Well-being for Children in Out-of-Home Care, 162 Archives of Pediatrics and Adolescent Med. 550, 552-53 (2008).

[19] Marc Winokur et al., Kinship care for the safety, permanency, and well-being of children removed from the home for maltreatment, Campbell Systematic Reviews 4 (2009).

[20] Winokur, supra note 19.

[21] Flash: October 2016, NYC Admin. for Children’s Servs., available at http://www1.nyc.gov/assets/acs/pdf/data-analysis/2016/Flashindicators.pdf .

[22] See Testimony from the National Association of Social Workers, Washington Chapter before the Committee on Human Services and Corrections (2013), available at http://nasw-wa.org/wp-content/uploads/2013/06/Testimony-SB-5163-CPS-Workers-2013.pdf.

[23] Testimony from the National Association of Social Workers, Washington Chapter, supra note 24 (citing Surjit Singh Dhooper, David D. Royse, & L.C. Wolfe Does Social Work Make A Difference?, 35 Social Work 57-61 (1990); Booz, Allen, & Hamilton, The Maryland social work services job analysis and personnel qualifications study. Report prepared for the Department of Human Resources, State of Maryland,(1987); U.S. General Accounting Office, Child Welfare: HHS could play a greater role in helping child welfare agencies recruit and retain staff (2003)).

[24] Data has shown that median household income has not kept up with median rent in New York City. This is particularly true in some of the City’s struggling neighborhoods. For example, in University Heights in the Bronx, median monthly rent increased 14.3% from 2005 to 2014, while median income decreased 12%. See, e.g., New York City Rent Guidelines Board, 2016 Income and Affordability Study, April 17, 2016, available at http://www.nycrgb.org/downloads/research/pdf_reports/ia16.pdf.

[25] National Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children (2012), available at http://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf.

[26] Joint Letter from U.S. Dep’t of Justice: Civil Rights Division and the U.S. Dep’t of Health and Human Services: Office for Civil Rights, Investigation of the Massachusetts Department of Children and Families by the United States Departments of Justice and Health and Human Services Pursuant to the Americans with Disabilities Act and the Rehabilitation Act (DJ No. 204-36-216 and HHS No. 14-182176), Jan. 29, 2015, available at https://www.ada.gov/ma_docf_lof.pdf.

[27] Sarah Gonzalez, Black Mothers Judged Unfit at Higher Rate than White Mothers in NJ, WNYC, May 26, 2015, available at http://www.wnyc.org/story/black-parents-nj-lose-custody-their-kids-more-anyone-else/.

[28] Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, Machine Bias: There’s software used across the country to predict future criminals. And it’s biased against blacks, ProPublica, May 23, 2016, available at https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.

BDS FAMILY DEFENSE SOCIAL WORK SUPERVISOR KAELA ECONOMOS TESTIFIES BEFORE THE NEW YORK CITY COUNCIL COMMITTEE ON GENERAL WELFARE ON PREVENTIVE SERVICES

TESTIMONY OF:

Kaela Economos

Social Work Supervisor, Family Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on General Welfare

Oversight Hearing on

Preventive Services at the Administration for Children’s Services

 December 14, 2016

My name is Kaela Economos and I am a Social Work Supervisor in the Family Defense Practice at Brooklyn Defender Services (BDS).  BDS is a public defender organization that provides inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The BDS Family Defense practice represents almost 2,000 respondents in child welfare cases every year and has helped thousands of children remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with the Administration for Children’s Services and foster care agency workers.

We thank the New York City Council Committee on General Welfare and, in particular, Chair Stephen Levin, for the opportunity to testify today. I will address both the quality and effectiveness of preventive services available to low income communities in New York City and offer BDS’s support for Resolution 1322 and Introductions 1062 and 1374, along with our reactions and recommendations to the bills.

Background
BDS’s family defense practice regularly interfaces with preventive service programs in three situations: (1) when ACS files a neglect petition against a parent whose family is already receiving voluntary preventive services because the agency believes that those services are not adequately addressing safety concerns in the home; (2) when preventive services are required by the Family Court in the context of neglect cases in order to keep children home with their families instead of being removed; and (3) when preventive services are required by the Family Court in order for children to return home to their families.

BDS strongly supports funding preventive services robustly for the intended purpose of these programs, which is to prevent the need for children to be placed in foster care and to reduce the time children spend in care.  In large measure, preventive service programs have been effective in helping to reduce the foster care population which has been reduced from almost 40,000 in 1999 to fewer than 10,000 children in foster care in New York City today.[1]  Keeping families together or reuniting families with services in place instead of placing children in foster care prevents the harm and trauma of removing children from their families and the harm and poor outcomes that children in foster care face.[2]  This also conserves limited social services resources and reduces the burden to taxpayers.

The goal of preventive services is to connect families with services and benefits so that ACS involvement is unnecessary to keep children safe. Ideally, preventive services would give agencies the ability to connect with the community in meaningful ways so that families could turn to them before ACS becomes involved in a crisis. If families could identify preventive services as a supportive option in their communities when they are having problems, much of ACS involvement could be avoided. Instead, ACS mandates preventive services after problems are identified which becomes another intrusive and invasive system in our clients’ lives which breeds suspicion and undermines the potential for meaningful and beneficial relationships.

Preventive services are most successful when they remain voluntary and are community based. The most effective preventive agencies are ones that have deep roots in the neighborhood they serve and have an established track record with the community. This results in communities and neighbors trusting them, which enables families to seek and receive help before anything rises to ACS involvement or mandated services. For example, our Mandarin-speaking families report the greatest satisfaction in cases involving Mandarin-speaking preventive service workers and organizations. When our clients feel like the preventive service agency understands them and their community, and is working with them, and not against them, our clients are more successful in achieving goals for their families.

Preventive service programs can and should be delivered more effectively to help families provide safe and stable homes for their children and to reduce the number of children who enter foster care. In our experience, monitoring requirements placed upon preventive services agencies;  formulaic service planning that does not take into account the complex needs of at risk families;  and delays in assigning preventive services to families in need all have contributed to reducing the effectiveness and availability of preventive service programs.  BDS testified extensively on these points during the preliminary budget hearing before this Committee in March 2015 and offered specific recommendations for ameliorating each of these concerns. A copy of our testimony is available online at http://bds.org/wp-content/uploads/3.17.15-NYC-Council-Committee-on-General-Welfare-Testimony.pdf.

My testimony today revisits some of these issues with new case examples. Suffice to say that the issues we reported on in 2015 have not yet been resolved. Indeed, ACS’ reaction to the recent tragic death of Zymere Perkins has been to remove even more children from their homes. These are the highest numbers of filings and removals that we have seen in all of our nine years of representing indigent parents in Family Court.

Delays in Assigning Preventive Services to Families in Need
As we noted in our March 2015 testimony, the lag between preventive services need identification and service provision often spans months. In some cases, this gap between identification and provision results in ACS seeking to remove children from their families unnecessarily. For example, in one case alleging inadequate housing conditions and leaving an 11-year old alone with younger children, ACS made a removal application where there had been a prior agreement to arrange preventive services that were not put in place in a timely manner. Because the delays in arranging preventive services are well-known in Family Court, judges are often reluctant to return children to their families, regardless of whether there is a plan that preventive services will quickly respond to the families’ service needs, leading to children staying in foster care for longer than necessary. Since only ACS is authorized to make the referral in cases where the judge mandates preventive services (non-voluntary cases), often our clients have no way to access services until ACS puts them in contact with the preventive services agencies.

In July 2015 ACS removed three-month-old twins from the care of their father, a BDS client, without a court order and placed them at the ACS Children’s Center.  The reason ACS gave for the removal was that our client had left the babies in the care of their mother who was not supposed to be alone with the children.  The Family Court held a hearing at which the ACS worker testified that she had requested preventive services for the family months earlier but they had yet to be assigned to an agency.  She admitted that our client had requested assistance with housing and childcare which she never provided.  He was forced to enter the shelter system with his children, and the shelter rules prohibited him from leaving the children with anyone other than their mother while he went to work in the evenings.  The hearing lasted six days, during which time the babies remained at the Children’s Center.  At the conclusion of the hearing, the Family Court denied ACS’ application to remove the babies and returned them to their father’s care.

More than a year later, we see that our clients still suffer significant delays in receiving necessary preventive services.  In late October BDS picked up a case involving a client whose children were released to her with court-ordered supervision. ACS spoke about providing the family with preventive services and our client kept following up with CPS as to status of the preventive services and whether or not ACS sent in a request, but ACS had not done so. At this point, our client decided to get the ball rolling and enrolled one of her sons to receive counseling due to behavior issues and her other son to get an appointment for early intervention, all on her own. Our client returned to court in December and her attorney informed the court about the delay in the preventive services. ACS stated that they only put in the request for services at the end of November, a full month after the first court date. Upon hearing this, the CPS supervisor reported that the family would be transferred to a Family Support Unit (FSU) worker. FSU workers are similar to preventive services workers, but in-house for ACS. FSU workers are often assigned to families after the CPS investigation where there is no foster care involvement but there is still court-ordered supervision of the family.

Recommendation: Preventive workers should be immediately assigned in all cases where families indicate they are willing to participate in preventive services. Worker performance should be assessed on the time between identification of family needs and the provision of services.

Overuse of Preventive Services Causes Backlogs
One major concern is that we often see ACS ask judges in Family Court to mandate preventive services, often without an articulable reason as to why the family needs services or how these specific services can benefit the family when ACS is already supervising the home and/or the parent is receiving other services such as counseling. When ACS asks for unnecessary services, this clogs up the pipeline and makes it even more difficult for families who do want and would benefit from specific services to get the help that they want and need.

As any social service provider will tell you, and social science research confirms, that people are best served when they are able to receive voluntary services narrowly tailored to their needs.[3] Anything beyond this scope often results in worse outcomes for the intended recipient, and greater costs for the system as a whole.

Recommendation: In Family Court, ACS should be required to articulate a reason for preventive services if they are requesting them with the goal of limiting the number of families who receive preventive services to only those who really need them.

Concern about the newly required Preventive Service Termination Meetings
We are concerned that the newly required Preventive Service Termination meetings that are outlined in ACS’s draft Integrated Family Team Conference Protocol that was issued on October 24, 2016 will have unintended negative consequences for families seeking preventive services whether voluntary or mandated. Not only do these new conferences increase the number of meetings the family must attend, they may result in unnecessary delays in the provision of preventive services, especially for homeless families or families with unstable housing.

Recently, we worked with a client who had preventive services in place for her family. The family was then transferred to a different shelter that was outside the catchment area of the assigned preventive service agency. Preventive services could not continue until the family was referred to a new provider in the new catchment areas, but a new referral could not be made until the former provider was able to close out their services with the family. Working under the new IOC conference protocol, this could not happen until there was a termination conference. There were delays in scheduling the service termination conference, including the lack of an available ACS facilitator. Instead of a seamless transition to new preventive services, the delay of the termination meeting, coupled with the long time frame for the preventive service planning conferences, resulted in several weeks of the family not getting any preventive services through no fault of their own.

Recommendation: ACS should reconsider the protocol around preventive service conferences to make service provision more seamless and to allow for a different process for families who are participating in preventive services. At a minimum, a conference should not be held if a family is terminating services due to a change in catchment area.

Concern about the Expiration Date on Mandated Preventive Services
Many of the evidence-based preventive services programs have strict time limits for how long the cases can remain open and it is very difficult to keep the cases open longer.  Time limits mandating the termination of services create a revolving door in the child welfare system. Families must stop services, not because they have completed their goals but because their time is up. Inevitably they return to services because the issues that led to ACS involvement in the first place have not been resolved.  The time limits also undermine the potential for meaningful relationships. Many of these families have had numerous negative interactions with the system and building trust is already difficult so these timeframes are just too short to do any long-lasting substantive work.

Recommendation: ACS should work with families to ensure they receive the voluntary services that they need, as long as they want and need them. However, mandated services should not be extended involuntarily to allow ACS constant intrusion in our clients’ lives.

Bills
Resolution No. 1322- Resolution calling upon the New York State Legislature and the New York State Office of Children and Family Services to develop a parents’ bill of rights to be distributed at initial home visits in child protective investigations and made available online

BDS strongly supports this bill. Connecticut passed a similar bill in 2011 and the Department of Children and Families now shares the bill of rights on their brochures and materials that they give to families. The Connecticut bill already serves as a successful model for implementation in New York. We would similarly urge that the New York State legislature work with organizations like ours that represent parents in Article 10 proceedings to ensure successful rollout of the bill.

Introduction 1062 – A Local Law to amend the administrative code of the city of New York, in relation to requiring the administration for children’s services to provide language classes to certain children in foster care

BDS strongly supports this bill without comments or recommendations.

Introduction 1374 – A Local Law to amend the administrative code of the city of New York, in relation to the utilization of preventive services

BDS strongly supports this bill to require reporting on the utilization of preventive services. However, we raise the following issues to the Council’s attention:

(1) We are concerned that the burden of reporting will fall on the preventive agencies to track and provide this data to ACS.
Preventive service agencies already are understaffed and loaded up with paperwork. We raise this issue in hopes that the Council will try to work with the agencies to ensure that the new reporting bill does not further limit the agencies’ ability to serve New York’s most vulnerable communities.

(2) ACS should be required to report on how many cases are voluntary versus mandated.
Preventive services are most successful when they remain voluntary and are community based. Data collection about voluntary versus mandated services would allow policymakers to assess which preventive programs have the most voluntary clients and whether incidences of ACS involvement are lower in those communities. We could also then assess how many clients avoid court when a preventive program is already involved or initiated early in the investigation.

(3) ACS should also track and report on data on the length of time between (1) when the court orders services, (2) the ACS referral to assignment of an agency, and (3) actual provision of services.
This recommendation seeks to gather data about the bureaucratic delays we discussed above.

(4) ACS should track and report on data specifically broken down by preventive service catchment areas, not just on preventive program types and slots.
This amendment will allow policymakers to see where preventive services are most utilized, where there may be waitlists for services, where there may be under-utilization and will help policymakers to determine sensible preventive service resource allocation.

(5) ACS should report how many families are receiving each of the services listed in 18 NYCRR 423.4(d)(1).
New York law requires that families receiving preventive services to prevent foster care placement have access to day care; homemaker services; parent training or parent aide; transportation; clinical services; respite care and services for families with HIV; emergency services, including cash or the equivalent thereto, goods and shelter; and the ACS Housing subsidy. Int. 1374 should be amended to ensure that ACS reports on how many families need each of these services and how many receive them.  This data should include not simply whether a family was referred to another agency to receive these services, but also whether the services were in fact provided and if not, what advocacy was done by the preventive agency to ensure service provision.

Conclusion
New York City’s progress in dramatically reducing the number of children in foster care over the past ten years has been possible through the increased availability of preventive services to families in need of support, earlier identification of such families, and greater accountability within the Family Court Systems to ensuring that appropriate service plans are put in place.  These trends must be applauded and not rolled back in response to recent child deaths.  We are grateful to the Council for your attention to preventive services and for offering legislation that seeks to shed light on how these services support families in need and limit the need for removal to the foster care system. Please do not hesitate to reach out to me at keconomos@bds.org or (347) 592-2554 with any questions.

[1] Center for New York City Affairs, The New School, Watching the Numbers:  A Six-Year Statistical Survey Monitoring New York City’s Child Welfare System (November 2016), available at https://static1.squarespace.com/static/53ee4f0be4b015b9c3690d84/t/5849a22f725e254385d753eb/1481220657883/FINAL_Watching+the+Numbers_2016.pdf.

[2] In our testimony submitted to this Committee in October, we noted that although most foster parents are well intentioned and provide a safe environment, there is overwhelming evidence of the negative outcomes of foster care placements.  Children placed in foster care are more likely to experience psychopathology than children who are not in foster care, with children in foster care being between 2.7 and 4.5 times more likely to be prescribed psychotropic medication than children not in foster care, according to one study.  Studies have found that rates of safety are actually worse for children in foster care than for those in family preservation programs.   For example, one study shows that children are actually twice as likely to die of abuse in foster care. New York State ranks the third worst for rates of substantiated or indicated reports of maltreatment of children in foster care.  Even these statistics are likely underestimations, as “abuse or neglect by foster parents is not investigated because agencies tolerate behavior from foster parents which would be unacceptable by birth parents.” Children who are on the margin of placement tend to have better outcomes when they remain at home as opposed to being placed in out-of-home care. In one study, a researcher looked at case records for more than 15,000 children, segregating the in-between cases where a real problem existed in the home, but the decision to remove could go either way. Despite the fact that the children who remained home did not get extraordinary help, on measure after measure the children left in their own homes fared better than comparably maltreated children placed in foster care. All of this evidence demonstrates that keeping children together with their parents, even within homes that are not ideal, is usually preferable to foster care placement. See Testimony of Brooklyn Defender Service and The Bronx Defenders before the NYC Council Committee on General Welfare October 31, 2016, pp. 5-6 (internal citations omitted).

[3] See, e.g., National Quality Improvement Center, Differential Response in Child Protective Services:  A Legal Analysis (Sept. 2009), available at http://www.ucdenver.edu/academics/colleges/medicalschool/departments/pediatrics/subs/can/DR/qicdr/General%20Resources/General%20Resources/docs/differential-response-in.pdf.

BDS NYIFUP SUPERVISING ATTORNEY ANDREA SáENZ TESTIFIES BEFORE THE NEW YORK CITY COUNCIL ON MULTI-AGENCY SUPPORT FOR IMMIGRANT FAMILIES

TESTIMONY OF

Andrea Sáenz – Supervising Attorney

New York Immigrant Family Unity Project (NYIFUP) Team

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council

Committee on Immigration

Oversight Hearing on

Coordinating Multi-Agency Support for Immigrant Families

October 21, 2016

My name is Andrea Sáenz. I am the Supervising Attorney of the New York Immigrant Family Unity Project (NYIFUP) team at Brooklyn Defender Services (BDS). BDS provides innovative, multi-disciplinary, and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy, for over 40,000 clients in Brooklyn every year. I thank the City Council Committee on Immigration, and in particular Chair Menchaca, for the opportunity to testify today about the critical role that City agencies play in supporting immigrant New Yorkers and to make recommendations on how to coordinate multi-agency support.

New York City is the nation’s leader in supporting immigrant communities, in large part because of the advocacy and funding provided by the City Council. The New York Immigrant Family Unity Project (NYIFUP) is New York City’s groundbreaking, first-in-the nation program providing quality counsel to immigrant New Yorkers who are detained and facing deportation and separation from their families and communities. BDS is proud to be a NYIFUP provider, along with The Bronx Defenders and The Legal Aid Society. In its first three years, NYIFUP has shown remarkable success and served as a model for access to justice. The following numbers were provided to us from the Vera Institute of Justice based on a preliminary and ongoing analysis of NYIFUP from earlier this year.

Record of Success

  • Outcomes: NYIFUP has obtained relief, termination, or administrative closure for 154 clients, who may now remain in the United States. NYIFUP attorneys have won more than half of their trials.
  • Clients Released from Detention: Counting these 154 successful outcomes, NYIFUP has secured release from custody for 452 clients. Thus, 31% of NYIFUP’s clients have been released from detention thus far and have been reunited with their families.
  • Ancillary Proceedings: NYIFUP has initiated 153 ancillary proceedings— proceedings in other courts or with USCIS that are critical to obtaining successful outcomes or release from detention in the deportation proceedings.
  • Voluntary Departures: NYIFUP has negotiated 102 voluntary departures so that individuals could avoid the onus and legal consequences of a deportation orders.
  • Families across the City: NYIFUP has represented clients living in 49 out of 51 City Council districts.

National Model

  • Spurring Replication Across New York State: Inspired by New York City’s leadership, the New York State Assembly provided funding in FY 2015 for a small pilot program at the Batavia Immigration Court in upstate New York, which has shown great success reuniting detained immigrants with their families. In FY 2016, the State Assembly doubled this funding, expanding the reach of NYIFUP pilot programs upstate. In FY 2017, the State Legislature tripled that funding, and the upstate pilot programs are reaching a significant number of clients who would never have had counsel without the spark that we started here in the city.
  • Inspiring Efforts Across the Country: NYIFUP has been the subject of national press and inquiry from jurisdictions across the country. In 2015, a NYIFUP-inspired universal representation program opened its doors in New Jersey, and cities including San Francisco, Chicago, and Boston have convened formal “study groups” to issue reports on access to counsel and develop programs like NYIFUP in their jurisdictions. Currently, Los Angeles is seriously considering a city-funded pilot program to follow in New York’s footsteps.

Connecting Clients to City Services
NYIFUP saves lives and strengthens immigrant communities. Critical to our success are the social workers who round out our legal teams, providing emotional support and connecting our clients and their family members with necessary services. By recognizing that social workers are a necessary component to any defense team, the City ensures that NYIFUP clients and their families are in the best position to access all of the programs and services that City and non-profits provide to New Yorkers.

I am proud to say that each of the three NYIFUP provider organizations has one or two in-house social workers on their NYIFUP team, who help us plan services a client can access upon release from ICE detention, and help support clients and family members as they complete their cases and transition to more stable and productive lives in the city they call home. As a program that is administered by the Human Resources Administration, we are proud to be able to connect clients to HRA benefits and other agency services.

This summer, when the City Council increased funding for NYIFUP – for which we are extremely grateful — I sat down with every member of the BDS NYIFUP team and asked them what type of hiring we should do to provide better services to our clients. My staff overwhelmingly said, if we had more social work support, we could do so much more to help stabilize our client’s statuses and other factors in their lives, and ensure they don’t come back to immigration trouble or to the same points of crisis in their lives. We were able to expand our social work services this year, and for that I want to sincerely thank the Council. It is making a difference.

Our clients’ stories demonstrate the value of social work support and the ways that the City supports our clients through important services.

Client Stories
Daniel from Jamaica
Daniel is a gay man from Jamaica who experienced severe homophobia and violence from his own family and from ordinary citizens in Jamaica, including having stones thrown at him and being chased by police. He came to the U.S. seeking asylum, but ended up in ICE detention because of a prior fraud conviction. NYIFUP staff worked very hard presenting Daniel’s case, and as a result, the immigration judge agreed that he has been persecuted in Jamaica and that he faced possible torture or death if he returned based on his sexual orientation and the rampant homophobic violence we documented there. Because his single conviction barred him from asylum, he was granted an alternate form of relief, deferral of removal under the Convention Against Torture. He was released from detention after many months and began building a new life.

However, Daniel had a lot of difficulty accessing city and other services because people did not understand the status he had been granted. He initially was turned away for Medicaid and Essential Plan eligibility, and only after our NYIFUP social worker and a health insurance navigator at another organization stepped in, he was finally enrolled in the Essential Plan and will be able to access medical care. Daniel then went to apply for Safety Net assistance, but was turned away twice by an employee who believed that a person without a Social Security number was not eligible. Again, with the assistance of our social worker and a lawyer from the Legal Aid Society, we sent Daniel back a third time armed with a cover letter and documents. Daniel asserted himself and asked for a supervisor, and the supervisor agreed he was eligible and that she would re-train her staff. Daniel is now going to be able to worry less about his day to day survival and will be pursuing jobs and education programs that will help him become a productive New Yorker.

Mr. C from Mali
Mr. C is a French-speaking asylum seeker from Mali who was persecuted by his own family and community because he is gay, including being stabbed by his own father. He fled Mali and asked for asylum at the U.S. border. He was initially released on parole and changed his residence to New York, in part because he had heard New York City is a welcoming place for gay men where he could find a supportive community.

At an immigration check-in where Mr. C was not provided an interpreter, a miscommunication led to him being re-arrested and detained without bond, which was deeply traumatizing to him. Mr. C obtained a French-speaking attorney through NYIFUP who started advocating for his release. His mental health deteriorated rapidly in detention, and he attempted suicide and was hospitalized. Scared for his safety, BDS filed a habeas corpus petition in federal court and demanded his immediate release rather than his return to ICE detention, which the hospital staff were concerned would continue to affect his mental health. After two tense weeks of negotiation, Mr. C was released.

BDS’s in-house social worker connected him with New York City’s unique array of services and support, including a support group at Gay Men of African Descent, a GED class, and an employment program. He has referred to his NYIFUP team as his “family.” He has gotten his OSHA certificate, is eager to contribute to his new hometown, and will finish his strong asylum case with his NYIFUP team by his side.

Recommendations
As our client stories show, legal service providers are well-situated to assess our clients’ needs and connect them with voluntary services that will impact both the outcome of their legal case and the quality of their life. On a regular basis we connect our clients with GED classes, OSHA certification or other professional training programs, affordable housing, educational advocacy, support groups, community groups, family and individual therapy, civil legal services advocacy, assistance with family court cases, and any other issue that may arise. We have had a number of extremely positive experiences getting our clients connected to the shelter system, benefits, education, and other services and are very grateful to New York City for its resources. While our social workers are skilled at helping our clients find programs and services, they can waste significant amounts of time trying to track down the correct contact information.

We recommend that the Council work with city agencies such as HRA and MOIA to establish an immigrant families support task force that would create a formal space for representatives from city agencies and nonprofit providers to meet and discuss challenges to coordination. It would also be useful if BDS and other service providers had the names and phone numbers of agency employees who are willing to serve as agency point-people for non-profit providers. The task force could brainstorm ways to improve agency coordination and report back to the council with legislative recommendations, if necessary.

It would be especially useful if we could communicate more easily with city agencies while clients are still detained to get as much of an idea as possible of what types of services our clients would likely be eligible to apply for if they are released from detention. Our clients’ bond or merits cases are often highly dependent on convincing an immigration judge that we will be able to connect them to some resources to continue their positive path upon release.

We would also welcome the opportunity to help educate city agencies about some of the more “unusual” or lesser-understood immigration statuses that our clients have and what different court and agency paperwork means. For example, NYIFUP wins many cases where the client ends up with both a removal order and a suspension of that removal order because the client faces significant danger if deported. These clients have orders of supervision, grants of withholding of removal and protection under the Convention Against Torture, and paperwork that does not look like the paperwork of people with asylum or refugee status. In addition, clients who win their cases in immigration court have paperwork that can look different than those of clients who win status before the immigration agencies. They can thus struggle to get the benefits they are eligible for. If there is any way we can help with training or provide examples of our client’s statuses, paperwork, and stories, we would love to do so.

Conclusion
New York City is doing more for immigrant families than any other city in the country. NYIFUP is the perfect testament to City Council’s commitment to our immigrant communities. We believe that increased coordination between city agencies and community-based providers would be helpful in ensuring that New Yorkers are able to access the thousands of resources that are available to them. Opportunities for dialogue and communication, and even a simpler way for providers like us to have regularly updated contact information or to have point people within HRA or within other agencies would go a long way in facilitating coordination.

Of course, we also hope that you will continue to support the legal services and wrap-around services that are provided through NYIFUP, and continue to support the inclusion of social work as an integral part of our high quality legal services. I assure you that our amazing social workers have helped ensure that our clients are able to maintain stable immigration status that we fought so hard for, and to help them access support, community, healing, and a path to economic independence and contribution to this city.

Thank you for your consideration of my comments. We are grateful to the Council for its continued attention to the needs of immigrant families.  Please do not hesitate to reach out to me with any questions about these or other issues at (718) 254-0700 (ext. 434) or asaenz@bds.org.

BDS SUBMITS WRITTEN COMMENTS ON NYC DOE PROPOSED AMENDMENTS TO CHANCELLOR’S REGULATIONS A-210 & A-750

COMMENTS RESPECTFULLY SUBMITTED BY:

Kaela Economos

Social Work Supervisor, Family Defense Practice

BROOKLYN DEFENDER SERVICES

And

Keren Farkas

Supervising Attorney, Education and Employment

BROOKLYN DEFENDER SERVICES 

Presented to

The New York City Department of Education

Regarding: Proposed Amendments to

Chancellor’s Regulation A-210

and

Chancellor’s Regulation A-750

December 20, 2016

 Dear Chancellor Carmen Farina:

Thank you for the opportunity to submit formal written comments on the proposed amendments to the Regulations of the Chancellor of Education relating to Minimum Standards for Attendance Programs (A-210) and Child Abuse Prevention (A-750).

BDS is a public defender organization that provides inter-disciplinary, holistic, client-centered representation in the areas of criminal, family, and immigration defense, as well as civil legal services, for tens of thousands of clients every year. The BDS Family Defense practice represents almost 2,000 respondents in child welfare cases every year and has helped thousands of children remain safely at home with their families or leave foster care and safely reunite with their families.  Our attorneys, social workers and parent advocates are in the field every day interacting directly with the Administration for Children’s Services, foster care agency workers and, when necessary, school personnel.  BDS’ civil attorneys offer collateral support to our clients in the areas of housing, public benefits and education.  Our Education Unit provides legal representation and informal advocacy, largely in the areas of special education and school discipline.  The education attorneys and social workers also work to maintain our clients’ involvement in their child’s education throughout child welfare involvement, including court ordered supervision, removal or reunification.

BDS recognizes the enormity and complexity of the Administration for Children’s Services’ (ACS) charge to protect the safety of children while also working to preserve families. Likewise, we acknowledge that schools are a centerpiece of a child’s life, and school officials have a unique vantage point into the well-being of its students.  In light of recent tragedies, this is understandably a time where ACS wants to reflect on its practices. That said, singling out horrific cases and focusing on increased surveillance of families rarely results in the kind of thoughtful reforms that keep children safe and families strong. We expect that any changes that will come from these amendments will be coupled with intensive and ongoing training to ensure school officials understand that reasonable cause to suspect child abuse or neglect is a prerequisite to any call to the New York State Central Register (SCR), independent of a student’s absences. [1]

While we recognize the worthy intentions of these amendments, we are concerned that, as written, the new guidance may encourage school officials to alert the SCR or ACS in unwarranted situations. We are concerned that the amendments ask school officials to take on CPS-like monitoring responsibilities, which seems inconsistent with the role of a school official. Clearly, strong and trusting relationships between families and school staff are crucial towards supporting a child’s education. The proposed requirements may lead parents, namely Tier 2 parents, to feel scrutinized and untrusted by their child’s school. A breakdown in the parent-school relationship can not only impact the child’s education and stability, but also discourage open communication between parents and the school. This only worsens outcomes for children and families.

We ask that the Chancellor consider the following points in this effort to create a policy that keeps students safe without further reinforcing the vulnerability of families presently or previously involved in the child welfare system.

(1) The Proposed Changes to A-210 and A-750 Improperly Place Functions of ACS onto DOE Staff

The proposed changes to A-210 and A-750 require schools to take on a number of additional tasks and roles.   Some changes expand existing responsibilities. For instance, schools already have attendance programs, including designated coordinators responsible for documenting attendance and reaching out to parents. A-210 and A-750’s recommended changes, however, specify an enhanced and graded monitoring protocol exclusively for families currently or previously involved in the child welfare system.[2] To implement the protocol, schools will receive a monthly list of its child-welfare involved students.[3]

Although we oppose the proposal, if this protocol is implemented, we expect that the monthly list of students will only be shared with staff formally responsible for attendance tracking. School officials may think a family’s current or past ACS involvement indicates issues of abuse even though the vast majority of child welfare cases involve allegations of neglect.[4] In addition, almost all child welfare cases are related to poverty and the stress that poverty brings to families.[5]   However, knowledge of child-welfare involvement may lead school staff to treat these families differently with undue hyper vigilance, leading to lack of trust and breakdown of vital relationship building between teacher and parent. Accordingly, to prevent alienating these families, the information should only be shared with those staff responsible for monitoring attendance.

Presumably, the increased focus on attendance is to verify a child’s whereabouts and safety.  However, A-750’s proposed protocol does not end at checking attendance.  A-750 III.C.3 also asks schools to conduct ongoing monitoring of child-welfare involved students.  We recognize that, as mandated reporters, school officials are required to report suspected abuse or neglect of children when presented with reasonable cause to suspect. However, the mandated reporter role does not have a monitoring or investigatory component.  The proposed amendment to A-750 imparts a new function on school staff by requiring school leadership to  “assign a school-based point” to students in all Tiers who must “make regular inquiries of classroom teachers and the school health office and update the ILOG records of these students with pertinent information about school progress or issues that arise.”

A-750’s proposed request for targeted monitoring is troubling. Monitoring a family seems at odds with educating a child.  Monitoring and investigating a child’s welfare is solely under the purview of ACS. Moreover, ACS is only allowed to engage in those functions when specific legal requirements are met.  The proposed monitoring is seemingly asking DOE to take on an ACS function.  Schools are a separate entity from ACS, and their functions should reflect that. Confusing the roles could compromise open school cultures between staff and families, while also potentially leading to unnecessary and harmful interventions for poor families.

We also want to note that DOE’s proposed new functions are, in part, duplicative of the responsibilities of ACS and foster care agency caseworkers. When families are under ACS supervision, caseworkers are already required to monitor a child’s education and progress. At many junctures, including conferences and court appearances, the caseworker is expected to provide updated information on school matters. We understand that this responsibility has typically been executed in collaboration with the DOE. Likewise, we acknowledge that caseworkers sometimes fall short of this responsibility. The proposed protocol, however, seems to be putting the onus of the responsibility on DOE, rather than putting the emphasis on improving ACS’ training and accountability.

Recommendations:

  • ACS and DOE should only share the list of ACS-involved students with staff responsible for monitoring attendance. Strict procedures should be implemented to ensure the information is otherwise kept confidential.
  • The proposed change, A-750 III.C.3, requiring ongoing monitoring, should be removed.
  • ACS and DOE should provide comprehensive training to DOE staff to understand the general trajectory of an ACS case and the ramifications of a call to the SCR. Beyond the general training, DOE staff should be instructed about the complexities of ACS involvement from parents involved in ACS proceeding.

(2) The proposed changes to A-210 and A-750 could result in an unlawful extension of supervision over families with closed cases, potentially resulting in unnecessary ACS involvement

A-750’s new “Policies and Procedures for Escalating Absence Concerns Regarding Students Involved with the Administration for Children’s Services” requests oversight over families no longer involved with ACS. Specifically, Tier II includes families who were “the subject of an ACS investigation” that was substantiated within the current or prior school year. [6] From the day they receive the case, ACS has 60 days to complete an investigation.  At the conclusion of the investigation, ACS determines whether the allegations are indicated or unfounded. If the allegations are substantiated, ACS may file a court case, offer voluntary preventive services, or close the case. A court order is the only avenue to extend supervision against a family’s consent.

All Tier 2 families have closed ACS cases. The cases are closed because there was no indication or legal basis to keep them open. The families are then no longer subject to involuntary supervision from ACS or, presumably, any city agency. By including Tier 2 families in the tiered response protocol, however, school officials are essentially being asked to continue supervision of these families without cause, which is inappropriate. Although we recognize that school officials are mandated reporters, the inclusion of Tier 2 families in the protocol unnecessarily takes school officials beyond that role.

We fear the implications of this policy because it puts a mark on families who, presumably, already cooperated with ACS, engaged in services, or otherwise merited discontinued ACS involvement regardless of what’s happening with the family. This monitoring also stigmatizes the family. Neither DOE nor ACS has put forward evidence that these families are more likely to abuse or neglect their children in the future. The policy’s design, however, has the capacity to alienate these families and build distrust between schools, its families and its students. At the extreme, we are also concerned it will lead to repeated and unnecessary ACS involvement.

Recommendation:

  • Families who are no longer under involuntary ACS supervision, or Tier 2 Families, should not be included in the proposed protocol under Chancellor’s Regulation A-750 § III.

(3) Proposed Amendments to A-210 and A-750 may lead to an influx of SCR calls

Mandated reporters are required to call the SCR whenever there is reasonable cause to suspect child abuse or maltreatment.  While A-750 refers to the reasonable cause standard, the language and framing of the protocol will likely confuse a lay person as to whether reasonable cause remains the threshold requirement to call the SCR. Further, because the proposed changes single out child-welfare involved families, it calls to reason that schools will apply increased vigilance and suspicion over these families, leading to more calls to the SCR.

An influx of unwarranted calls to the SCR can have detrimental impacts on the overall system and individual families.  More calls to SCR do not necessarily enhance child safety. Rather, it can backlog the already overburdened system, depriving those families most in need of attention and support.  For the individual family, it can result in unnecessary and potentially harmful intervention. It may also lead to a breakdown in the relationship between the family and the school.

Needless to say, this policy will also disparately impact families of color. Racial disparities in the child welfare system are well documented. Implicit bias in mandated reporting results in over reporting of families of color to ACS for suspected abuse or neglect.[7] This phenomenon occurs without any evidence to suggest that children of color are more likely to be abused or neglected. Implicit bias at the point of referral, investigation and substantiation is already a problem plaguing our child welfare system.[8]  Accordingly, if school personnel are being asked to conduct more in depth monitoring of students, beyond their role as mandated reporters, and fulfill the policy’s protocol, DOE and ACS should provide the necessary bias training to prevent disparate impact on families of color. For instance, DOE staff should be required to attend training around implicit bias and cultural competency to help minimize the potential of racial bias in reporting and monitoring of families.

After calling the SCR or identifying an attendance issue, the tiered response protocol and A-750 III.D. also instructs DOE to reach out to the appropriate ACS entity.[9] In several instances, the protocol directs DOE and ACS to convene meetings. For instance, if DOE calls the SCR regarding a Tier 1 family, ACS is directed to conduct a safety assessment and possibly a school conference.[10] Given that these families may have existing court cases, the protocol should require ACS to contact the parent’s attorney and other attorneys on the matter before scheduling a conference in these cases. For Tier 3 families, the protocol also suggests that case planners schedule a meeting with the school to address the child’s absences.[11] As these children are in foster care, we ask that case planners notify the parents of any school meetings to ensure their involvement in educational decision-making.

The tiered response protocol also appears to ask schools to contact ACS when the reasonable cause standard is not met.  For instance, even when schools are satisfied with a family’s explanation for a child’s absence, the protocol instructs schools to contact ACS when they believe “further intervention and coordination with ACS would address the reasons for absence.”[12] This guidance applies to families without active ACS involvement. Specifically, for Tier 2 families, it directs schools to contact ACS’ Office of Education Support and Policy Planning.[13] Then, ACS is instructed to work with the school to determine whether there is an open preventive services case and, if not, whether it is feasible to call the SCR. ACS will also coach schools on what information to provide to the SCR.[14]

There are certainly scenarios where well-meaning school officials want to involve ACS to help a family get support. We recommend that any such decision, however, be made in collaboration with the family. Preventive services are indeed a valuable way to connect families with services so that ACS involvement is unnecessary. However, preventive services are most effective when they remain voluntary and community based.  Schools should be connected with community-based organizations that provide families with support. Additionally, they should only be utilized when there is a palpable way that the agency could support the family. When the reasonable cause standard is not met, schools should not be encouraged to reach out to ACS without consulting the family first.

An overreliance on preventive services- often only to provide additional monitoring of families- has caused major backlogs and delays in families receiving preventive services whether mandated or voluntary.  This clogged pipeline makes it even more difficult for families who really need and want preventive services to get them. We have testified extensively about preventive services before the New York City Council. The testimonies can be found online at http://bds.org/bds-family-defense-social-work-supervisor-kaela-economos-testifies-before-the-new-york-city-council-committee-on-general-welfare-on-preventive-services/ and at http://bds.org/wp-content/uploads/3.17.15-NYC-Council-Committee-on-General-Welfare-Testimony.pdf.

Recommendations:

  • ACS and DOE should provide comprehensive training to DOE staff to understand the required standards for calling the SCR, as well as implicit bias and cultural competency.
  • When the reasonable cause standard is not met, DOE staff should be required to consult with families and get consent before contacting ACS.

Conclusion

While we understand DOE’s and ACS’ earnest intention with in developing this policy, we have questions about its likely implications. Specifically, we are concerned that it is overreaching and could lead to unnecessary intrusions into the lives of poor families, without having a palpable impact on the safety of children in New York City.  We hope the DOE will consider our suggestions in finalizing the language of Chancellor’s Regulations A-750 and A-210.

Please do not hesitate to reach out to Keren Farkas, Supervising Attorney, at kfarkas@bds.org or (718) 254-0700, or Kaela Economos, Social Work Supervisor at keconomos@bds.org or (347) 592-2554 with any questions.

 

[1] New York Social Services Law § 413.

[2] Chancellor’s Regulation A-210 § III.D; Chancellor’s Regulation A-750 § III.

[3] Chancellor’s Regulation A-750 § III.

[4] New York City, Keeping Track Online: The Status of New York City Children (2013), available at http://data.cccnewyork.org/profile/location/1/city#1/new-york-city/1/1193,1194/a/a.

[5] Id.

[6] Chancellor’s Regulation A-750 § III.B.2(b).

[7] Jina Lee, et al., “Implicit Bias in the Child Welfare, Education and Mental Health Systems,” Nat’l Center for Youth Law [2-5]

[8] Id.

[9] Although not included in the proposed changes Chancellor’s Regulation A-750 or Chancellor’s A-210, this guidance is included in the ACS and DOE October 29, 2016 “Joint Statement Introducing a Tiered Response Protocol for High-Risk Cases of Educational Neglect and Unexplained Absence,” disseminated to all ACS and DOE staff.

[10] See “Joint Statement Introducing a Tiered Response Protocol for High-Risk Cases of Educational Neglect and Unexplained Absence,” Commissioner, NYC ACS & Chancellor, NYC DOE, III.E.ii.c.i (October 29, 2016)

[11] Id. III.E.vi.

[12] Id. III.B.iv.b.

[13] Id. III.E.iii.

[14] Id. III.E.iii.b.

News

HELP BROOKLYN DEFENDER SERVICES KEEP PEOPLE ON RIKERS ISLAND WARM THIS HOLIDAY SEASON!

Happy holidays from Brooklyn Defender Services!

Our wish for you this winter is to help us keep our clients detained on Rikers Island warm.

We have created an Amazon Wishlist of the items that our detained clients need the most to make it through the winter. Please click on this link to our Amazon Wishlist to purchase socks, long underwear, and other much-needed essentials that we will deliver directly to our clients in Rikers this holiday season.

Why are we doing this? Thousands of people are detained on Rikers Island, and when temperatures dip they have no heat in their cells, are wearing paper-thin uniforms (often short-sleeved) and have one thin blanket to shield them from the cold.

In this time of giving, please consider helping some of our clients who are most in need.

If you have any questions, please contact Daniel Ball at dball@bds.org or (347) 592-2579.

LETTER TO SPEAKER MARK-VIVERITO: NYC MUST REFORM HIGH-ARREST POLICIES TO PROTECT IMMIGRANT NYERS FROM DEPORTATION

December 1, 2016
Hon. Melissa Mark-Viverito
Speaker, New York City Council
250 Broadway, Suite 1856
New York, NY 10007
Dear Speaker Mark-Viverito:

As immigration legal services, juvenile justice, and criminal defense providers and advocates, we stand ready to assist the New York City Council in its efforts to protect the rights and well-being of immigrants in our City. The multi-disciplinary staff in our immigration practices, funded in part by the Council’s visionary New York Immigrant Family Unity Project (NYIFUP), as well as the Unaccompanied Minor Children (UMC) and Adults with Children (AWC) initiatives, will zealously fight any and all efforts to remove our fellow New Yorkers from their families, communities and country.

One way the City can reduce the likelihood of Immigration and Customs Enforcement (ICE) arrests, detention and deportation is to minimize immigrant New Yorkers’ contact with the criminal and juvenile justice systems. Specifically, as the Council continues to negotiate the implementation of the Criminal Justice Reform Act with the New York Police Department (NYPD), it is critical to bear in mind that an arrest even for the lowest-level violation can lead to deportation, broken families and broken communities. Under the Priority Enforcement Program (PEP-Comm), a federal mass-deportation regime, all fingerprints taken by the NYPD are automatically provided to the FBI and ICE. The NYPD’s high-arrest policies thus effectively provide the federal government with ready-made lists of thousands of immigrant New Yorkers whose humanity, family and community ties, and even lawful residency can be undermined simply because they bear the label of “criminal” for the most paltry alleged offenses. ICE collects information gathered through arrests regardless of whether the District Attorney declines to prosecute a case, a case is still pending so has no final resolution, all the charges are dismissed, or a case results in a non-criminal violation.

The President-elect has committed to vastly expanding existing deportation efforts, likely targeting those who have been arrested, even for non-criminal violations. In an interview with 60 Minutes on November 13th, he estimated that his mass deportation regime would sweep up between two and three million people with criminal records.[1] Senior officials in his transition team later clarified that mere arrests, regardless of findings of innocence or case dismissals, would trigger deportation actions.[2] For this reason, among others many of our organizations have cited in the past, civil summonses are the preferred enforcement action, where any such action is necessary. (Of course, this holds true for immigrants and non-immigrants alike.)

Our clients are terrified that they and their loved ones might be jailed and ultimately banished from the country that is their home. For many, the only source of hope in their lives at this time may be that they live in New York City, where the Council has passed legislation to restrict the circumstances in which the City will honor a detainer request by ICE. Unfortunately, ICE continues to arrest immigrant New Yorkers in their homes, in their communities, in homeless shelters, in the workplace, and in the courthouses. ICE particularly targets non-citizens with an arrest history, including people with open pending criminal cases or cases that resulted in a low-level disposition or violation. As a result, arrests for being in the park after dark, for possessing an open container of alcohol, or for other harmless activities, which are largely permitted in more affluent neighborhoods, essentially flag vulnerable New Yorkers for priority enforcement by ICE. If the President-elect ultimately implements the policies that he has promised, New York City must stand up and resist—not be complicit.

Other critical ways New York City can fight back against mass deportations, particularly in the likely event of substantially increased deportation proceedings, are by preserving and increasing funding for NYIFUP and the UMC and AWC initiatives. Our preliminary analysis of NYIFUP data suggests that having an attorney increases the likelihood of being able to remain in one’s home and community by a factor of ten.

We share the Council’s belief that all New Yorkers—and all Americans—benefit when our diverse communities can thrive together. As you have noted, immigrants, regardless of their status, are the backbone of our City, our culture and our economy. New York City—the superlative arts, cuisine, mom-and-pop businesses and street life that draw visitors from around the world—is as defined by newcomers as it is by the successive waves of immigrants that came before us. We must celebrate this unique gift, but we also must protect it. Making everyone feel welcome in our communities is essential to their safety and ours. Existing high-arrest policies undermine all of these benefits and threaten the health and safety of our City. They must be curtailed, now more than ever.

Thank you for your consideration. We look forward to continuing to work with you on these and other matters in the months and years ahead.

 

Sincerely,

 

Andrea Sáenz and Nyasa Hickey, Supervising Attorneys, Immigration Practice, Brooklyn Defender Services

Maria E. Navarro, Acting Attorney-in-Charge, Immigration Law Unit, The Legal Aid Society

Jennifer Friedman, Director of Immigration Practice, The Bronx Defenders

Rich Leimsider, Executive Director, Safe Passage Project

Anne Pilsbury, Director, Central American Legal Assistance

Eve Stotland, The Door’s Legal Services Center

C. Mario Russell, Director, Division of Immigrant & Refugee Services, Catholic Charities Community Services.

 

 

CC: Nisha Agarwal, Commissioner, Mayor’s Office of Immigrant Affairs

 

[1] http://www.cbsnews.com/news/60-minutes-donald-trump-family-melania-ivanka-lesley-stahl/

[2] http://www.latimes.com/politics/la-na-pol-trump-immigration-criminals-20161114-story.html

News

URGENT! CALL GOVERNOR CUOMO AND URGE HIM TO SIGN THE GRAVITY KNIFE REFORM BILL

Please consider calling Governor Cuomo’s office at (518) 474-8390 TODAY to politely urge him to sign the gravity knife reform bill (A9042A).

It only takes a minute and it makes a real difference. You’ll simply say your name, tell them you’re a New Yorker, and urge the Governor to sign the gravity knife reform bill to end the racist criminalization of working New Yorkers for carrying their tools. 

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