The Deronda Review
PRECIOUS LITTLE BABIES:
Lessons From Family Court
Judge Richard Ross
(A longer version of this work was previously published in audio CD form and is available from the author.)
CHAPTER FOUR: Ripping Apart Families
Established constitutional law protects Americans from government interference with the raising of their families in most circumstances. That is why some accuse Family Court judges of spending their nights devising creative ways to break up families and using daylight to execute the mission.
Well, hardly. After a day on the bench, the body stunned and the mind two gears past redline, most New York City Family Court judges barely make it to the ten o’clock news, much less have the inclination or energy even to ponder such weighty matters.
During the day, of course, judges are busy judging. Judging has its tricks, as with any craft. Yet the two special skills that judges have to master are particularly crucial and difficult. The first is never to prejudge anyone. The second is always to disregard your private notions and apply the law instead.
Accomplishing these feats requires repeated willful acts until the behavior is a habit. For example, a citizen might walk into my courtroom dressed down and appearing shy of wattage. On television, Judge Judy might tell such a person that just because he looks a mess and seems stupid doesn’t mean he can act like a lowlife in her television studio. A real judge, however, cannot think or talk like that without substantial risk to reputation and career. On the boob tube this behavior from the ersatz “bench” makes for high ratings. Yet by talking so fresh in a real courtroom, a judge would be violating canons of judicial ethics that require judging on the facts only and leaving no impression to the contrary.
The high stakes involved in matters of children and families may tempt a judge occasionally to apply less than the highest standards of judicial self-discipline. When twelve year-old Ashley’s maternal grandfather half-stepped his way around the back of my courtroom to his chair at the litigant’s counter, poking with his cane from behind his inky sunglasses and with Ashley’s aunt at his arm on the off-cane side, I started to tell myself there was no way he could care for the child. He was too frail, too slow, too. . . blind.
I scanned the court papers. Ashley’s grandfather was charged with child neglect for failing over a period of several months to assure that Ashley took her prescribed daily dose of Ritalin. The result? Ashley’s behavior at school had deteriorated. Recently she had engaged in several fights with other students. During the last, a boy made a rude remark; Ashley threatened him with a pencil. Intervening, a teacher found herself jabbed with the point, which left a mark on the back of her hand. The school called child welfare officials. Caseworkers examined the hand and reviewed the behavioral and medication history. Ashley found herself in foster care that night. Her grandfather wanted her back home.
New York City’s lawyers wanted to begin the hearing with Ashley’s school psychologist bearing witness to the child’s three years on Ritalin. In addition, she would provide expert testimony about the effects of dose-slacki ng. That morning, a snowstorm had made getting to work a maddening chore. Tired, and irritated for some reason at the case before me, I was in no mood for dose histories and expert opinion. I wanted to talk with Ashley.
In the robing room, Ashley told me purposeful lies in an engaging manner, spiking her story-telling mischief with the emotions she displayed.
She cried and cried. Angela went across the hall for another box of tissues, leaving me, Ashley’s lawyer, and the court stenographer unguarded momentarily with this Ritalin-starved, pencil-wielding adolescent. Her hyperactivity and attention deficits had brought her at this tender age to a black-robed, bearded stranger to plead for the restoration of her home life.
Well, we felt safe enough. Angela returned with the tissues.
“I broke my leg in September and they gave me these pills for pain. With the
Ritalin they gave me stomach aches so I stopped taking it except at school.”
“How often do they give you Ritalin at school?”
“Every day. At lunch time. I go to the nurse’s office.”
“How do you feel when you take it?”
“It makes me calmer. I can pay attention better in class.”
“Did you ever get stomach aches from just Ritalin?”
“Did you tell anyone the pain pills were hurting your stomach?”
“I stopped taking them.”
“How did you break your leg?”
“I was in a car accident.”
“Who was driving?”
In the reel that was rolling in my mind’s eye I had Ashley’s grandfather cast as Mr. McGoo. He was driving along Broadway oblivious to red lights and double-parked delivery trucks.
“How is your leg now?”
“When you stopped taking the pain pills why didn’t you start taking the Ritalin, what is it, three times a day?”
“I don’t know. I just didn’t.”
“Did you tell your grandfather you had stomach pains and weren’t taking the Ritalin?”
This was a nice lie on behalf of Grandpa.
“I didn’t want to worry him.”
“Well, doesn’t he usually remind you to take it?”
“Until about a year ago. I got old enough for him to trust me with it.”
“Have you been taking it three times a day during the week you’ve been at the foster home?”
“No. Only at school.”
“Why is that?”
“When I went to the foster home it wasn’t with my stuff from home.”
I was starting to understand where this would lead once I was back in the courtroom with the grown-ups. I needed a more detailed time line. I asked Ashley for details. The child became evasive. I was left with the impression that the Ritalin dose had become inconsistent a year or so ago.
“Are you ready to go back to the three times a day dose?” I asked Ashley.
“I guess,” she said.
“How do you like foster care?” I asked her, trying to keep it from sounding like extortion.
“I hate it. I want to go home. If I’m there much longer I’m going to run away.”
She started to cry again. Extortionists come in all sizes.
In the courtroom, thank goodness, the school psychologist took a sensible tack on the witness stand. I had presided over several trials in which experts provided the scoop on Ritalin. Unfortunately, from expert to expert one obtained a scoop du jour. This witness was more relaxed.
”The truth is, we’re on a trial and error basis with this drug,” she said with a matter-of-fact air. “Some children respond marvelously and get tremendous benefit. Others don’t. It’s difficult always to know when to make the ADHD [attention deficit hyperactivity disorder] diagnosis. There are other conditions which manifest with behavior that meet ADHD criteria. Even when I am confident a child is being accurately diagnosed, a child’s behavior in a particular situation that could be ascribed to ADHD might be occurring for other reasons. And Ritalin dosages require careful monitoring and adjusting in terms of efficacy and side effects.”
“What’s your take on Ashley?” I asked.
“She is a very intelligent child, Judge, who made significant strides in achievement and became much more focused and, I think, comfortable within a few months after beginning Ritalin. I noticed negative changes – restlessness, inconsistent academic performance – as far back as late last spring, though nothing as serious as the fighting behavior that started once her leg began to heal a few months ago. I discussed this on several occasions with her grandfather, but he has consistently maintained that Ashley was taking the medication at home as prescribed.”
“And until these changes became evident the child was basically okay once the Ritalin regime began?”
Finally it was the grandfather’s turn. He was a feisty gent, displaying the toughness of a survivor. He had not bargained on his wife dying so soon after Ashley’s parents were killed in a car crash and they had taken the child into their home, much less on going legally blind in the meantime. Despite it all, he had given Ashley his best and was proud of it.
“You might have asked me first, Judge. I’ve got nothing to hide. It’s been a long time since I insisted on Ashley taking Ritalin. I stopped asking her about it last year. I’m no doctor, but I know that child. She’s full of oats. Always has been. And smart as you could hope for. She can act any way, any time. Crazy or calm, whatever suits her. She’s got no condition, she’s just her mother’s daughter.”
“So what is your explanation for the behavioral problems at school?”
“Judge, She’s having a rough spell. Kids have them, you know. Her parents died. My wife died. I’m sure she didn’t figure on the system making an example of her or on finding herself in a stranger’s home. She’s scared to death. I don’t approve of you all getting involved this way, but it might have done her a world of good. It’s time to end it, though. She belongs at home.”
There it was. Never prejudge. Worn, frail, and impaired of vision though he was, Ashley’s grandfather was yet her devoted caretaker. His words, tone, and demeanor resonated with every judge’s favorite: the truth.
Rule two: Follow the law always. At this stage of the case, New York law required a finding of “imminent risk” to Ashley’s life and health in order to keep her in foster care.
I told the grandfather: “Sir, I’m sending your granddaughter home to you and directing the City to have a new evaluation performed by a psychologist who has never met Ashley. If that individual makes a diagnosis of ADHD and you continue to insist she doesn’t need medication for it, your suitability as her caretaker is going to come into question with me.”
The new psychologist ruled out ADHD. Ritalin was “contraindicated.” Ashley suffered from a “mood disorder,” he wrote, and needed further evaluation.
Ashley stayed at home. The case went to trial. I considered the contradictory testimony and written reports of the experts and dismissed the child neglect charges.
One morning during the months I was handling Ashley’s case, a court officer approached the bench and said: “Judge, there’s a case we have to bring in next before this guy gets himself arrested out in the waiting area.”
This was not an unusual reason for a case to be given priority. Judges try not to ask too many questions of staff lest they prejudice themselves against the litigants. A judge trusts the court officers, who are out in the waiting areas all day trying to keep the players calm and in place before their turn on stage.
“Okay, bring it in,” I said.
“It’ll take another minute or two, Judge. The woman is breast-feeding across from intake.”
The officer rolled her eyes. “Don’t ask, Judge. I’ll go see if she’s finished.”
She wasn’t. I went into the robing room. I could see in the hallway another of the female court officers and a male officer. They were standing near the door to the small room next to my robing room where court staff took breaks. The room had a locker, a desk, and a water cooler. I joined them.
“What’s going on?”
“This guy tried to follow the woman into the hallway,” the male officer said. “We stopped him at the waiting area door. He’s screaming at her that she’s killing the baby. She’s all crazed and saying she’s got to breast-feed the baby, like now.”
“Maybe I should take the rest of the day off,” I said.
“Sounds like a good idea, Judge.”
“How much longer do you think she’ll be?”
“I don’t know, Judge,” said the female officer. “You want me to go in there and ask her?”
The three of us stared at one another.
“Nah,” I said, shaking my head.
The officers laughed. “Good call, Judge.”
“That’s why they pay me the big bucks.”
“They don’t pay any of us enough to work in this place, Judge,” the male officer said.
Meanwhile I was wasting minutes and the calendar clock was ticking.
“I guess I’ll go back in there and do something else,” I said to them.
I went back to the courtroom, which was empty except for Angela and the court stenographer. I felt exhausted all of a sudden, although I had worked just one-third of a day. I thought about Lewis and Clark looking across the Continental Divide into a wilderness of mountains.
“You know what? Let’s call the case. I can’t wait forever. Do me a favor, Angela. Please tell the woman we’re ready and she’s got to come into the courtroom.”
“But don’t tell her she’s killing the baby.”
Angela gave me a look.
“You didn’t hear?” I said to her. “That’s what the guy said to her in the waiting area.”
“Terrific,” Angela said.
The court stenographer said to me: “What’s this about, Judge?”
“Haven’t the faintest,” I said to her. “Apparently a dispute about the breakfast menu.”
Here was this thin guy wearing John Lennon wire-rims and a worn plaid sports jacket and he couldn’t wait to start talking.
“Sir, hold on a minute, please. We’ve got to swear you in and have you sit down.”
“Judge, I – ”
”Sir, please. Nothing you say has any meaning to me until you’re sworn.”
His wife was giving him dirty looks and holding the baby, who looked to me to be about six weeks old. I glanced at the case papers. The baby boy was nine weeks old. His somewhat unnerved parents lived together. His father wanted legal custody, which made no sense unless the request was a pre-emptive strike before an imminent separation.
Angela got them to swear to tell the truth and when they were settled in their seats the man started to speak.
He was getting on my nerves and I enjoyed for a perverse moment having a reason to interrupt him again.
“Excuse me, sir. You and your wife need to understand your right to counsel first.”
He looked exasperated.
I advised them, but they didn’t feel they needed lawyers. They were wrong.
“Okay, sir. Go ahead.”
“Judge, we had our son two months ago and my wife had a post-partum depression. She’s breast-feeding and taking Prozac. I have this literature here that says it’s bad for the baby. I want you to order her to stop.”
Opening a manila folder on the table in front of him, he grabbed a handful of papers and thrust them in the air at me.
“Here. These will tell you. Make her stop.”
“Sir, hold on to the literature. When is the last time you slept? You seem a bit overwrought.”
“It’s been a little while.”
“What is it you want her to stop, the breast-feeding or the Prozac?”
“The Prozac. Really?”
He nodded. “It’s not doing her any good anyway. I believe breast-feeding is very important for the baby’s development.”
He seemed like a man who would be willing to take on the job. I was close to suggesting it then thought better of it.
Glaring at her husband, his wife said: “It takes a little time for the Prozac to start showing results. I’ve noticed a difference in the way I feel the last week or two.”
“Ma’am, please don’t stare at your husband. I don’t like people to fight in the courtroom. What about the breast-feeding? Did your pediatrician tell you not to while you’re on the Prozac?”
“He said not to, right?”
Her husband’s head was bobbing up and down.
“Well, yes,” his wife said.
“So why not give the baby formula?”
“Because it’s crucial for him to have the breast milk and to experience the breast-feeding.”
Her husband was nodding in agreement. They were joined in holy matrimony on that issue.
“Well, something’s got to give,” I said to the new parents.
“He wants me to stop the Prozac so I’ll be depressed again and he can take over the baby with his parents. The man is absolutely obsessed.”
“That’s a lie!”
They dueled with their eyes, Luke Skywalker and Princess Leah turning light sabers on one another.
“My word, look at you two,” I said to them. I gave the baby’s father a hard look. Then I turned to his wife.
“Ma’am, the important thing here is the well-being of the baby, right? If your doctor wants you on Prozac and your pediatrician says you shouldn’t breast-feed, it seems to me you should switch to formula.”
“Judge, we need to breast-feed our child,” the father pouted.
“We?” I said to him.
“It’s my child too,” he replied.
“Oh for God’s sake,” his wife said.
“You know, you two really need to calm down,” I said to them. “One of these nights you’re going to end up having a big fight and the police will get called and the child welfare people will be at your place wondering whether they should take the baby. This can be worked out between the two of you if you’ll settle down.”
“It’s already happened, Judge,” the woman said.
“What’s already happened?” I asked her.
“Two nights ago he grabbed the Prozac bottle out of my hand and threw it across the kitchen. Almost tore my fingers off. He was out of his mind. I went to call the police but he yanked the phone away from me. I decided to let it go.”
The father started to say something but I interrupted, thrusting my right palm in the air in front of me and holding it out there like a stop sign.
I had a significant choice to make. Ordering a child welfare investigation could result, perhaps appropriately, in the removal of the baby to foster care. The disputes at home were escalating into violence. Continued doses of Prozac might endanger the baby’s health. Yet I was thinking of those wire monkeys in the psych experiments. More expert testimony than I cared to recall had come across my bench about the lifelong damage infants suffered from losing parents. Was it possible to re-introduce the parents to rational thought? I wasn’t sure.
“Okay, I’ve heard enough for now. Two things are going to happen. I want the two of you to have a seat in the waiting area. We have a mediation program in the courthouse and one of their representatives is going to speak with you. They will assess whether mediation might be the right way to go here. The case will be recalled later today to see what the mediators think.”
Two hours later the mediation service told me the case was suitable for mediation. The parents, however, did not want to try it. I liked mediation as a tool for settling family disputes that did not involve child neglect or abuse, drug or alcohol addiction, domestic violence, or significant psychological pathology. New York law, however, did not permit me to order people to use it. They had the right to refuse my referral.
Just before lunch break the parents stood before me again. The baby had just had another back-room courthouse feeding.
“Ma’am, I would like you to discuss with your psychiatrist whether there is any other medication for you that would risk no ill effects on the baby if you breast feed and have the doctor or a letter from the doctor in court Monday. I’d also like an assessment of your current psychological condition and prognosis. Sir, I’d like you to bring your parents to court. I’m appointing a lawyer for the baby. Each of you should give careful consideration to hiring your own lawyers for Monday. At the end of the hearing on Monday, if things aren’t straightened out in the baby’s best interests, I’m ordering the Administration for Children’s Services to investigate and take appropriate protective action.”
“What does that mean?” the baby’s father asked.
“It means the City will come out to your home and do other investigation into the circumstances and put your baby into foster care or with a relative if they believe there is imminent risk to the baby’s life or health. I might order removal myself if I come to that conclusion.”
The baby’s mother began to cry.
“Why do my parents have to come to court?” her husband asked.
“Because they’re involved, and I want to get a sense of their contribution.”
I thought it was a nice double-edged use of the word, and congratulated myself. Nobody else noticed, of course. Judging is a lonely life, but I was toughing it out.
“This isn’t – ” the father began.
“You can both step out now, please,” I said, and Angela hustled them out the door.
Monday arrived, with a doctor’s note. Prozac was no longer indicated, the mother’s psychiatrist wrote. She was well enough. Moreover, Prozac leaves the body slowly; she would have residual benefits for a while.
“The pediatrician says I should look for irritability, crying spells, maybe sleeping problems in the baby,” the baby’s mother told me. “That might be the Prozac. But so far he seems fine. Anyway I’m not going to be taking it any more.”
“So. Are you two going to be all right?” I asked them.
To John Lennon’s right his mother and father were sitting and a look at them would chasten the most merry-hearted.
Instant karma indeed, I said to myself.
The grandmother said: “Judge, we would like you to order the mother to have a consultation with a highly respected psychiatrist we have selected. We don’t believe she has at all recovered from her depression.”
There it was again – “we”.
I said to the baby’s father: “Is this what you want?”
The grandmother said: “It’s not – ”
”Excuse me, ma’am,” I cut her off. “There’s no question before you from the Court.”
She pitched a little fit, pursing her lips and glaring at me, the glint of her eyes like sunlight on a winter field. I respected the grandmother’s concern for the baby and knew that her desire to be involved was basically well-motivated, but she had to understand she wasn’t one of the baby’s two parents.
I turned back to the baby’s father.
“Well?” I said to him.
He had his hands clasped on the table and was looking down at them.
After a moment he said: “I don’t know,”
“Okay. Your custody petition is dismissed. What I am certain of is that you don’t want custody. You want to work things out with your wife and take care of your son. I’m going to let the two of you do that and leave child welfare officials out of it at this time. Good luck to both of you.”
The courtroom was silent. “Thank you,” I said, and went to lunch.
It wasn’t always that grim, but it was often weird. The names parents gave to their children provided some of the stranger moments. I certainly won’t forget the following children among the cases I handled (these are given names, not nicknames):
.Uh-oh (a baby boy born testing positive for cocaine).
.Godawmighty (a boy).
.Purple and Little Purple (sisters).
.Stalin, Hitler, and Mussolini (brothers).
.Universe, Saturn, their sisters Morning Star and Sunshine, and their brother Charles (Charles?).
.Cadillac, LeBaron, and Chevrolet (brothers).
There are those who assert, perhaps facetiously, perhaps not, that giving a child a name such as these is child neglect all by itself. In fact, some other kind of parental misbehavior, not mere whimsy, is often associated. A charming woman named Barbara Clarke, for example, sat in my courtroom one summer morning when (surprise!) the courthouse air conditioner was on the fritz. Construction workers were backing trucks, stacking plywood, and occasionally operating jack hammers in the alley along the open courtroom windows. Even without the din I would have had trouble registering Ms. Clarke’s story.
She’d had nine children.
With her one true love, David James Thomas, she had six sons born out of wedlock: David James Thomas, Jr., David James Clarke Thomas, James David Clarke Thomas, James David Thomas, David Clarke Thomas, and Clarke Thomas.
Later she had James Clarke, father unknown.
Then, with yet another man passing in the night, twin girls: Melody Clarke and Melody Ann Clarke.
Ms. Clarke was a large woman with a relaxed manner and sunny air. I felt free and easy with her.
“Ma’am, please don’t get offended. I’m not intending to insult you. It’s more curiosity than anything else. I mean, what were you thinking of?”
She laughed. “You mean, all those kids?”
“No. The names.”
“Judge, I was so loaded on drugs and booze all those years I didn’t know what I was doing most of the time. I just kept getting pregnant and putting those names on the birth certificates and losing the babies to foster care. The truth is, I can’t say for sure David Thomas was the father of some of those first six boys. He disappeared a long time ago. I just kept putting his name on the forms they’d give me. You know, back then a woman could name a man as the father on a birth certificate without anybody asking him if it was true.”
Ms. Clarke told me all of this with the jolly air of a woman surprised to find herself among the living.
I liked her so much I had to remind myself that her case permitted no sloppy thinking. Her children were in foster care in two households where loving prospective adoptive parents were waiting for me to terminate Ms. Clarke’s parental rights so that the adoptions could proceed. The oldest child was sixteen, the youngest four. The nine of them had bounced around the foster care system until settling with the two current foster families three years ago. New York City’s caseworkers had an open-and-shut case of long-term neglect against Ms. Clarke and were ready to go to trial.
Ms. Clarke had a different proposal.
“Your Honor, I want to suggest a possible resolution of this matter,” her court-appointed lawyer said. “Ms. Clarke is willing to admit to the truth of the neglect charges against her in return for a one-year suspended judgment, during which she will continue to demonstrate her rehabilitation with a view towards uniting the family under her care. As you may know, she has lived in New Mexico for the past two years and has been free of all drugs and alcohol for nearly three years.”
“No, I didn’t know,” I said.
“She has documentation of her participation in a recovery program and negative drug and alcohol tests going back nearly two years.”
“Judge, I’ve completely cleaned up,” Ms. Clarke added. “I’m working in a restaurant, I attend my program regularly, and New Mexico is a great place to raise children. It’s a lot better for kids than New York City.”
The children’s lawyer was on her feet all of a sudden.
“You may be seated,” I told her, motioning with my hand. “The mother’s settlement proposal is premature. We’re going to proceed to trial.”
I turned to the City’s lawyer. “Please call your first witness.”
An hour later the trial was over. The evidence was overwhelming to free the children for adoption.
“Don’t rip apart my family,” Ms. Clarke pleaded with me at the end.
“Ms. Clarke, these days there are lots of different kinds of families,” I replied. “Solid long-term foster homes are families, too. I hope you are able to keep up the good work, but the interests of these children are best served by their being adopted in their current situations. I’m sorry, but it’s too late for you with them.”
While I was speaking, the construction crew outside was smashing stone into dust. I fantasized: The case was a T.V. script, an announcer was saying “We’ll be back after these messages.”
Then Ms. Clarke began to moan. As I got off the bench I took a last look at this rehabilitating drug addict, but I was keeping my mind on the children.