Nicholson V Scopetta (New York City)

Recent Publications

Human Rights, Volume 32, No. 1, Winter 2005
"Holding Foster Care Agencies Responsible for Abuse and Neglect"
By Carolyn A. Kubitschek

New York County Lawyer, Winter 2004
"NYCLA Submits Amicus Curiae Brief in Support of McGrath V. Toys 'R' Us, Inc." By Carolyn A. Kubitschek

Nicholson Class Action

New York, NY - The city's Administration for Children's Services (ACS) has agreed that it will follow the law in child welfare cases involving domestic violence: ACS will not remove children from battered mothers and will not claim that victims of domestic violence are neglectful parents. In settling the class action lawsuit Nicholson v. Scoppetta, the city ends four years of litigation in which it was found to have violated the constitutional rights of battered mothers and their children.

Since June 2002, the city has operated under an order barring ACS from continuing to remove children from victims of domestic violence and from charging them with child neglect. The order will expire on December 31, 2004. Under the terms of the settlement, attorneys for the mothers and the children will monitor ACS through September 2005 and can return to court if the constitutional violations reoccur.

Nicholson received nationwide attention as the first case in the country to challenge as unconstitutional child welfare practices that punish rather than protect domestic violence victims and their children. The lawsuit forced ACS to engage in a widespread revision of its practices in domestic violence cases and,k by conservative estimates protected more than 1000 children from unlawful removal from their mothers. In the wake of Nicholson, the New York legislature amended the law to provide that child welfare agencies throughout the state be meticulously trained on issues of domestic violence.

The case's reach extended beyond domestic violence victims and their children. The case drew attention to the inadequacy of legal representation for poor people, spurring the New York legislature to increase the rates paid to assigned counsel for all indigent litigants in the family and criminal courts to $75 per hour. The attorneys were previously paid as little as $25, leading to a dearth of qualified counsel.

Further, in October, as part of the appeal process, the state's highest court ruled that child welfare agencies throughout the state are prohibited from removing children from any parents, particularly without court order, without considering the harm to the child of removal.

Since the case began, ACS has paid more than $3.5 million in settlements to individual mothers and children.

The plaintiff mothers are represented by the law firm Lansner & Kubitschek and Jill Zuccardy, Esq. of Sanctuary for Families. Center for Battered Women's Legal Services. The children are represented by Legal Aid Society Juvenile Rights Division and Lawyers for Children.

See Stipulation and Order of Settlement.

New York Times Articles

New York Times article, December 18, 2004
"Abuse Victims And the City Settle Lawsuit"

New York Times article, November 28, 2003
"Abused Mothers Keep Children in a Test of Rights and Safety"

New York Times article, September 15, 2002
"City to Settle Over Removal of Children"

Other Articles

New York State Law Digest, New York State Bar Association, No. 541, January 2005
"Removing Children from Domestic Violence Setting Based Only on Child's Witnessing Domestic Violence"

Trial Magazine, January 2005
"In New York, Battered Mothers Not Presumed Neglectful"

Youth Law News, October-December 2004, Vol. XXV No. 4i, p. 7
"New York Raises the Bar for Interdisciplinary Practice In Family Violence Cases"

New York County Lawyers Association Article
"Court of Appeals Rules in Favor of Precedent-Setting Case Argued by NYCLA Member"

New York Law Journal, December 20, 2004
"City, Agency Settle Suit Over Children of Battered Mothers"

Pro Bono News, Fall 2004
"Small Law Firm Wins Major Domestic Violence Ruling"
By David J. Lansner

Trial Magazine, October 2003
"Justice for Abused Foster Children"
By Carolyn A. Kubitschek

Nicholson Decision is "Good News for Women"

http://www.thenation.com/doc.mhtml?i=20040112&s=pollitt

In its January 12, 2004 issue The Nation lists 20 events in its "Good News for Women" report. The Nicholson decision was Number 14. "In New York, the US Court of Appeals for the Second Circuit upheld the 2001 ruling in Nicholson v. Scoppetta that child services can't take away the children of battered women."

Nicholson v. Scoppetta, New York Court of Appeals

Albany, NY -- In a strongly-worded unanimous decision, New York's highest court ruled today that victims of domestic violence who are beaten in the presence of their children are not neglectful parents. The Court also ruled that a practice of removing children from battered mothers without court order violates state law.

In 2002, a federal judge had ruled in the class action Nicholson v. Scoppetta that the City's Administration for Children's Service had a practice of removing children from battered mothers and charging the mothers with child neglect. Last year a federal appeals court referred the case to the state court for a decision as to whether that practice was unlawful.

The state court's decision has broad implications not only for domestic violence victims but also for all parents involved in the child welfare system. The court explicitly ruled that child protective services should not remove children from their homes without court order except in rare circumstances. The court ruled that judges should not order removal without making a factual inquiry on the need for the removal. Judges considering removal must also determine whether other steps, such as removing the batterer, would eliminate the need for removing the children. Finally, judges must balance the harm to the children from removal in deciding what course to take.

The case of Nicholson v. Scoppetta was filed in federal court in January, 2000, and was later certified as a class action lawsuit on behalf of all mothers who were victims of domestic violence and their children. After a two-month trial including numerous child welfare and domestic violence experts, the federal judge issued a decision in March, 2002, finding that the City had a policy of routinely charging mothers for "engaging in domestic violence," and removing their children, and that such a policy was unconstitutional. Since June, 2002, the City has operated under an order barring the City from continuing to remove children from victims of domestic violence and from charging them with child neglect.

Nicholson v. Scoppetta is the first lawsuit in the country challenging government practices that victimize battered mothers and their children.

The plaintiff mothers are represented by the law firm Lansner & Kubitschek and Jill Zuccardy, Esq. of Sanctuary for Families' Center for Battered Women's Legal Services. Legal Aid Society and Lawyers for Children represent the children in the lawsuit.

• Decision, October 26, 2004
• Nicholson v. Scoppetta Webcast of September 8, 2004 - Oral arguments
• City's reply brief for New York Court of Appeals
• Subclass A's brief for New York Court of Appeals
• Subclass B's brief for New York Court of Appeals
• City's brief for New York Court of Appeals

Nicholson v. Scoppetta, United States Court of Appeals

The United States Court of Appeals for the Second Circuit issued an important and favorable ruling in Nicholson v. Scoppetta, 2003 WL 22130666 (2d Cir. 2003). The court found that New York City Administration for Children's Services had a policy of charging victims of domestic violence with being neglectful as a result of "exposing" their children to domestic violence and removing their children. The court found that the problem was sufficiently widespread to require judicial intervention. The court also found that such policies could be unconstitutional. The court stated that New York law on the subject was not clear and referred three questions to the New York Court of Appeals in Albany: Whether allowing your child to witness domestic violence against yourself constitutes neglect under New York law; whether the injury, if any, to the child from witnessing the domestic violence constitutes imminent risk allowing ACS to remove the child without court order; and whether allowing the child to witness such domestic violence is sufficient to allow a Family Court order of removal without additional, particularized evidence.

The decision leaves the preliminary injunction in effect and has held the appeal in abeyance pending the determination by the New York Court of Appeals. The court also found that plaintiffs has not waited too long to seek a preliminary injunction. The decision was written by Judge Katzmann and joined by Judge Oakes. Judge Walked dissented. The court did not deal with the assigned counsel payment rate at this time.

The New York Court of Appeals will schedule arguments on the questions, and may accept further briefs on the issue.

Nicholson v. Williams, US Court of Appeals Decision, September, 16 2003, 344 F.3d 154 (2d Cir. 2003)

Other Nicholson Documents

• Nicholson v. Williams, Decision on Preliminary Injunction, March 18, 2002, 203 F.Supp. 2d 153 (E.D.N.Y. 2002)
• Nicholson v. Williams, Preliminary Injunction, January 3, 2002, 181 F.Supp. 2d 182 (E.D.N.Y. 2002)
• Nicholson v. Williams, Class Certification Order, August 16, 2001, 202 F.R.D. 377 (E.D.N.Y. 2001)
• Nicholson v. Williams, Summary of Decision
• Fourth Amended Complaint Class Action

Lansner & Kubitschek would like to thank all those who submitted amicus briefs in Nicholson v. Scoppetta.

Nicholson Review Committee

The Nicholson Review Committee Report is now available.

"In anticipation of the preliminary injunction ending, we [the Nicholson Review Committee] would like to summarize our major activities related to enforcement and compliance, including the status of the complaints we've received, and provide an assessment of how ACS compliance is proceeding, particularly as this may bear on future actions taken by the court or other parties."

Abuse in Foster Care

Foster Children in California and eight other western states will be safer in their foster homes as a result of an appeal argued by Carolyn A. Kubitschek before the United States Court of Appeals for the Ninth Circuit.

The Ninth Circuit en banc ruled that foster children who are placed in dangerous foster care placements can sue the agencies and staff who failed to protect them from harm. The Court overruled its 14-year-old precedent which had given absolute immunity from liability to foster care organizations and staff.

• Miller v. Gammie, (July 9, 2003) 335 F.3d 889 (9th Cir. 2003).

Landmark Preservation

The New York City Landmarks Preservation Commission has designated our building, at 325 Broadway, a historical landmark.