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Closed courts create anguish for families separated by child welfare system

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In states with shelter-in-place orders, most courts have been closed or able to hear only limited types of cases, with devastating consequences for some families. The lack of access to courts has delayed reunifications for families with children in foster care, and has caused difficulties for child custody arrangements in domestic violence cases.

The outsized impact of COVID-19 on the most vulnerable populations includes these families. “The pandemic brings into focus all that was wrong with the system even when times were good,” said Emma Ketteringham, managing director of the Family Defense Practice at Bronx Defenders, a public defender nonprofit. “Many of the families that have been separated by the child welfare system have been separated because of reasons of poverty. Lack of stable housing, food insecurity, lack of child care, and a lack of steady income were the reasons for child welfare involvement before this crisis, and these things are an even greater struggle now. The vast majority of our cases are about these issues.”

A new report, Covid-19 Paused Family Reunification Cases: They’re Resuming, But at What Pace?, by Abigail Kramer, senior editor at the Center for New York City Affairs at The New School, details how the court closures created further heartache for parents by prolonging their children’s stay in foster care. In New York City alone, “hundreds of children who were ready to exit foster care — most of them to reunite with their parents — found themselves stranded in a system that has become very hard to leave,” reports Kramer. In mid-March, family court buildings were closed and judges were instructed to hear only “emergency/essential matters,” and hearings had to be held by phone or video. “Those matters did not include most of activities that move children toward reunification with families. While judges continued to hear petitions from ACS [Administration for Children’s Services, which oversees New York City’s foster care system] to remove children from their homes, they stopped hearing motions from parents who want to contest those removals. Even in cases where children were on the brink of leaving foster care when the virus came, progress largely stalled out.”

This situation has led to concern about children being removed unnecessarily. "Courts tend to view the emergency in keeping a child from being harmed and don't look at the harm of separation from the parent,” said Cathy Sakimura, deputy director and family law director at the National Center for Lesbian Rights. “Now there is a focus on emergency situations, which encourages less time spent investigating each case.”

Although courts in some places, including New York City, have begun to hear more cases, challenges remain. "Our clients with children in foster care are very anxious about when they can come home, and it’s frustrating for us to not have something concrete we can tell them,” said Maura Keating, director of litigation at the Center for Family Representation, a legal and advocacy organization. “We are especially worried about children in [group homes], but even when they are with relatives, we are working hard towards reunification so that families can shelter at home together.”

Low-income families are over-represented in the child welfare system. For these parents, who do not have a wide array of resources to deal with the COVID-19 crisis, the loss of their children only compounds their anxiety. “It feels scary for parents when courts close down reunification but keep open removals,” said Jeanette Vega, training director at Rise, an advocacy and support organization for parents affected by the child welfare system. “That is a fear that becomes overwhelming. I know [the COVID-19 crisis] is a process for everyone, but the ones suffering the most are those without their children.”

Parents with children in foster care have experienced disruptions to in-person visits, with many jurisdictions suspending them altogether. "The loss of in-person visits is huge because all the other requirements that parents are supposed to comply with for reunification, like classes or appointments, can be made up or rescheduled, but visits and time with your child can never be replaced,” said Tanya Gassenheimer, staff attorney on the Community Justice team at the Shriver Center on Poverty Law, which advocates for racial and economic justice. “Even if the visits are rescheduled, we can't stop children from growing, bonding, and developing in their surroundings, so those rescheduled visits will be fundamentally different. Children and parents will lose that precious time. This crisis has exposed the values of the child welfare system, that the default is removal. We should show the same level of urgency that has been taken around public health concerns for the health of families."

Families aren’t always able to replace in-person visits with video conferencing. When it does take place, it can be extremely difficult for parents with very young children, said Joyce McMillan, founder of Parent Legislative Action Network, which advocates on behalf of families with children involved with protective services. One of her clients has not seen her one-year-old since mid-March, and her baby cries when she tries to visit over Facetime. She just found out that her June court date has been delayed even further. “Not only do you not have any control when your child is taken from you, but in this current situation, parents can't even verify if their child is healthy.”

The court closures have also created safety issues for domestic violence survivors who need to renegotiate custody and visitation agreements that are now difficult if not impossible to abide by. "One of the biggest challenges we are facing is with visitation orders and situations where there is joint custody of children, which is never good when there is a history of domestic violence but is especially problematic for survivors right now," said Dorchen Leidholdt, director of the Center for Battered Women’s Legal Services at Sanctuary for Families, a service provider for survivors of domestic violence, sex trafficking, and other forms of gender-based abuse. One of her clients shares custody with her former partner who lives in another state, which requires traveling that is not recommended during the crisis. Another woman shares custody with a former partner who lives with other people, and is fearful that her child risks exposure.

“We spend a lot of time trying to ensure visitation orders that will be safe, and often the change-over is in a public space or the child's school or an agency, and those are all closed right now,” said Jennifer Friedman, director of the Bronx and Manhattan Legal Project & Policy at Sanctuary for Families. “We have worked hard to craft visitations that are reasonable and create order out of chaos. But in this situation chaos has been recreated because it’s impossible to follow visitation orders, and now you are back to negotiating with someone who is unreasonable. These are highly acrimonious situations, and you are dealing with someone who wants power and control.” Some domestic violence survivors have had to switch from in-person visits to Facetime and are worried for their security because their ex can see into their home or see the layout of their home, and possibly figure out where they live. Even just having their ex's image and voice in their home can be triggering.

An immigrant mother and client of the Lone Star Victims Advocacy Project (LSVAP), a legal and advocacy organization for immigrant women in rural Texas, lost custody of her 5-year-old son when her abusive ex-husband took emergency action to get sole custody of him, and she has seen him only four times since March during brief, supervised visits, where her son cries and asks why he can’t be with her. She has not been able to speak with him in between visits, since her former husband and his family won’t take her calls. She has no idea when the court will be able to hear her appeal or even when the next supervised visit with her son will be.

"Every abuser uses the fear of losing your children as a weapon, and when you're an immigrant, that fear is multiplied,” said Glenaan O’Neil, the director of LSVAP. “My clients who still have jobs don't have child care, and with schools closed, they have to leave their kids on their own and live with the fear of someone calling in the authorities and losing them to foster care."

Since there is no timetable for when courts will be fully up and running, there will be a long backlog of cases, resulting in children remaining in foster care for much longer than they would have otherwise. “The emotional impact on parents and children of being separated from each other is devastating, more so given these uncertain times,” said Anya Mukarji-Connolly, supervising attorney with Brooklyn Defender Services' Family Defense Practice. “The long-term impact of this separation has been well documented in social science research. The trauma children suffer from this separation is catastrophic — it impacts their emotional health and brain development. There are few legal matters more essential and urgent than sending children home from foster care to be home with their families.”

Advocates are pushing for the child welfare system to make immediate changes in order to increase the ability to hold virtual hearings. "We know that there are children in foster care who can be safely at home, and ACS should be doing everything it can to make that happen as expeditiously as possible,” said Ketteringham. “The population in jails and prisons has been reduced by 20% because people were willing to ask hard questions and find solutions. We need to do the same in the child welfare system. We can’t just hit pause and wait this out. We need to think differently and do what is necessary."



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