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 ONE: LISTENING FOR THE TICKING BOMB
Soon after Judith Sheindlin left the bench to become the well-known television judge, I replaced her as supervising judge of Manhattan Family Court and inherited her courtroom and caseload. I was a Family Court judge for ten years.
Judge Judy’s show and others of its ilk amuse people and sell lots of soap. Entertainment rules. In the world of real courts, however, and particularly in Family Court, real judges aren’t mean for effect. They know the suffering doesn’t end with a commercial break. Lives are raw, the courthouses are jammed, and there’s no makeup. There are too many cases, too few solutions, the community and children are at risk.
The real-life drama of assuring the law’s protection and support of children more resembles Mission Impossible than People’s Court. My typical daily docket involved thirty families with as many as sixty children. Story lines featured domestic violence, deadbeat dads, custody fights, drug and alcohol abuse, child beatings, and sexual abuse. The cases involved all races, ethnic groups, and economic classes. At conferences with Family Court judges throughout the United States I discovered, sadly, that their courthouses and court calendars were as crowded as Manhattan’s.
Such is the novelty and, yes, anxiety of Family Court judging that new judges simply must tell tales of courtroom life. Privately, our husbands and wives, poor souls, feel obliged to listen. After a while we learn, for story-telling at least, that less is more. Unlike ordinary batteries, judicial batteries recharge by unplugging. At the outset of my career, though, I was like everybody else; my wife Laura was a sympathetic and sensitive listener.
One night, with Laura’s terrific meatloaf on the plate, I described a case in which the father of a fourteen year-old girl tied her to a chair and whipped her with an electric cord while her mother watched. At school the next day, the girl tried to hang herself in a bathroom.
My wife put down her fork and stared at me for a moment. I hadn’t considered that I might be ruining her appetite.
“It’s hard to believe that kid was once their precious little baby,” Laura said.
Precious little babies. What a thought. Court administrators tell me I handled more than thirty thousand cases. Neither their computer printouts nor the parade of humanity through my courtroom brought to mind precious little babies. Instead I found troubled, even ruined, children. How did they get that way? Why was my caseload so large?
In Family Court, what’s important are children and families. We didn’t need 9/11's reminder, but what greater old truth emerged on that awful day? Here’s my story, on point though but nothing at all compared with the horror so many thousands experienced. Most weekday mornings during those fifteen minutes when the planes smashed into the World Trade Center, I would be right there, in my car alongside the two towers on Church Street, perhaps waiting for a red light to change, heading for the Family Court after dropping off Laura at work near the Stock Exchange five blocks away. But not that morning. My mother had fallen on a Manhattan sidewalk the previous evening. She was living with us then. I’d spent most of the night at the emergency room. At nine a.m. on 9/11 I was with her at the hospital, awaiting consultation with an orthopedic surgeon. Laura took our son Luke to school, then waited at home for my phone call instead of going to work. Both of us assumed immediate surgery was on tap. Laura would join me at the hospital to await the outcome.
A nurse told me the awful news that was on the radio. A few minutes later, word of the second plane spread along the hospital corridor. A woman ran screaming into an elevator. We could still hear her after the doors closed. Although hospital rules did not permit it, I tried to call Laura on my cell phone. The phone was useless. In New York City hundreds of thousands of us were staring at our cells and gritting our teeth.
I asked a nurse if I could call my wife from her desk, figuring no chance, nobody lets you do that in a New York City hospital. Life had changed that day, though.
“Sure,” she said. “Give it a try.”
I got through. Laura had just seen the second plane hit the South Tower on the T.V. news. We didn’t talk much. I choked up hearing her voice, nearly crying, though I’d known she was home.
Then came word that hijackers had crashed the planes and that the Pentagon was hit. I told myself: We’re at war.
And. . . had an overwhelming urge to go to Luke’s school and take him home! The school was nearby. The surgeon hadn’t arrived and the nurses were telling us that the hospital was being prepped for emergency surgery only. My mother’s case would wait.
I went over to the school.
“Don’t worry, the children are fine,” the woman at the reception window told me. “We’re going to keep them here for a few hours and then we’ll call about an early pick-up.”
I stared at her. She handled me gently, but firmly. Feeling as though I had a missing limb, I left. The feeling stayed with me for hours until we picked him up. We took my mother home, too. Her elbow and shoulder were broken, poor thing, and the surgery wouldn’t happen for four days. But she had painkillers, and we were all together.
Those of us who escaped the actual horror – we have the same story, don’t we, with different details?
Children and families. Families and children.
Remember the teenagers in several states who killed teachers and schoolmates several years ago during commando raids on their schools? They were time bombs ticking. The discipline of Family Court judging includes a mighty effort to discern that scary sound amidst the racket and clatter of courthouse life. To an untrained observer, an adept Family Court judge may seem relaxed during seemingly routine paces on the bench. In fact, that ease is crafted, studied, permitting focus. The sharper the focus, the more clear the case.
Family Court judges know the truth of the saying “Any day, any case.” The time bombs present themselves in many packages. The ticking may at first be inaudible or sound like something else. Twelve year-old Andrea and her mother, for example, were halfway up the long flight of stairs leading to their second-floor walk-up on Manhattan’s Upper West Side when Andrea pushed her mother. Tumbling down the stairs, Andrea’s mother suffered bumps and bruises. The next day, she had her daughter arrested on charges of assault and reckless endangerment. Because Andrea was not yet sixteen, New York law charges these crimes as “juvenile delinquency.” The police brought Andrea to Family Court.
New York City Family Court judges share new case assignment chores on a daily rotation. I was assigned to the intake “part,” as New York calls its courtrooms, on the day Andrea’s case was filed. Andrea, her court-appointed defense attorney, her mother, and a New York City prosecutor followed two uniformed security officers into the courtroom and took their places facing me. They stood fifteen feet away behind two wooden counters that served as litigation tables. The counters were narrow and shaped like boomerangs, with a space between them at the courtroom’s midpoint. Fixed in the floor at each counter were five wooden chairs. The chairs were built too close to the counters and only haute couture models could fit in the seats. It was as though the architect had designed a moot court for grade school.
“Number 76 on the intake calendar, Your Honor, In the Matter of Andrea R.,” one of the court officers intoned, and handed me the case papers.
I didn’t have to read them to know that the charges involved the girl’s mother. Parents and children sit together at most juvenile delinquency hearings. Instead, Andrea’s mother was on the other side of the courtroom, to my left, and as far from her daughter as she could get. She presented as middle-class – tan and spare with cropped hair in several shades of blonde and wearing tailored taupe slacks and a linen blouse. But her face had the passive beaten look of a lynx in a trap.
I needed to appoint someone to stand in the mother’s place for Andrea as a guardian. I glanced at a lawyer observing from near the door of the courtroom. Seeing that I was about to appoint him, he volunteered.
“Thank you, Mr. Anton,” I said.
“Not a problem, Your Honor,” he said.
“Your Honor, may we approach the bench?” the prosecutor said.
This meant that the lawyers had resolved the case to their satisfaction and wanted to have a low-toned, off-the-record discussion at the bench to see if I would accept their proposal. As the prosecutor and defense counsel approached, I read the charges in the case papers and the factual allegations.
At the bench the prosecutor said: “Judge, I think we’ve worked this out. The two of them had an argument. The girl lost her temper and gave the mother a push on the arm. She didn’t mean to push her down the stairs. We’re willing to ACD it and the mother will go along. Nothing like this has ever happened before. Her mother reports a good school record and only normal adolescent kinds of behavior issues until now.”
When the prosecutor said “ACD,” the meaning was Adjournment in Contemplation of Dismissal, a New York disposition assuring that six months of good behavior would earn Andrea an automatic dismissal of the case without a juvenile delinquency record. ACD was reserved for the least serious of cases and for juveniles with otherwise clean court and community histories.
“That’s right, Your Honore, said Andrea’s lawyer. “We’ll accept the deal.”
In the periphery of my vision, at a table past the witness stand to my right, the file folders of fifteen other cases awaiting my attention urged me to accept the deal. Let’s go, the files said. Get it done. I looked again at the mother and Andrea. Since morning I had moved more than forty cases involving a total of seventy-five children. Yet, despite the fast pace, the courtroom mood was languid. The drama cloyed. The summer day’s humidity and the courthouse’s half-hearted air conditioning weren’t helping, and late afternoon thunderstorms that were being promised to break the heat wave hadn’t arrived. Lawyers and court staff were watching me. I found myself thinking about another line of work. I had been a pretty fair shortstop in high school and was wondering if Derek Jeter wouldn’t mind moving over to second base.
Then I recalled the red flags of weariness and anger I had seen on the faces of the mother and daughter as they came into the courtroom. I felt as though I were hearing the horn of a locomotive approaching a railway crossing on a dark night. I’d better stop, look, and listen.
I said to the two lawyers: “So what exactly was happening just before the mother got pushed?”
“You wouldn’t believe it, Judge,” the prosecutor said. “According to the mother, her daughter was eating an ice cream, threw the wrapper on the bottom of the stairs after they got inside, and when the mother told her to pick it up the kid freaked out on her.”
“You know, yelling and cursing as they went up the stairs and saying she wasn’t going to pick up the wrapper. The mother blocked her on the stairway and the girl pushed her arm. The mother lost her balance and fell.”
“That’s about what I got, too, Your Honor,” Andrea’s defense counsel said. “An accident.”
“Where’s this kid’s father?” I asked then.
“Not in the picture, Judge,” Andrea’s lawyer replied. “He disappeared long ago.” “Okay, thank you, counsel. Please step back. We’ll go on the record again.”
“What about the ACD?” Andrea’s lawyer asked.
I shook my head. “No. Doesn’t feel right. I’m going to send it out for trial. We’ll pick a trial date.”
“But – ”
”Thank you, Ms. Lankford. That’s it.”
The lawyers moved back into place. I asked Andrea’s mother: “Ma’am, are you asking me to have Andrea at home until the trial date?”
“You better, you [expletives],” Andrea yelled at her mother.
“Don’t you – ” the mother started to reply, and the court officer who had been standing behind Andrea moved to the girl’s side to block her route across the courtroom.
Then Andrea shouted: “I’m going to kill you, you [expletive]. All of you. Just wait and see.” She was about to say more when I broke in.
“Take her to the clinic,” I said, and several court officers began to handcuff Andrea while another officer escorted her mother out of the courtroom.
Within the hour, at the court’s mental health clinic, a psychologist (and Andrea’s mother) learned of Andrea’s handgun and submachine gun collections and her plans to kill, to begin with, her mother, her teachers, and, for no reason Andrea could express, her five year-old sister. I placed Andrea in a psychiatric hospital pending trial.
In the ordinary course of things I would not have followed Andrea’s case. The notion that drives this policy is that the intake judge may learn information about the juvenile that would later compromise the appearance of judicial impartiality about the issues and facts at trial. (There are no juries in Family Court.) The judge assigned to handle Andrea’s trial was transferred to Brooklyn Family Court two weeks before the trial date, however. Two days after the transfer, the psychiatric hospital to which I had sent Andrea returned her to court. The case was reassigned to me. I read the hospital report that accompanied Andrea to court. According to the report, Andrea was not a danger to herself or others.
Oh yeah? I said to myself. I understood from years on the bench that hospitals sometimes applied this standard with a keen operational eye on their daily shortage of beds.
In this case the prosecutor and defense counsel surprised me.
“Judge,” they told me in a conference in my robing room behind the courtroom, “we’re both perfectly content for you to keep the case.”
The prosecutor picked up the ball. “Yes. We’ve both read the hospital report. We’re convinced a resolution can be worked out, and you’re in the best position to deal with it. We’d rather not have to go through the process of another judge gaining familiarity with the situation.”
This was not a compliment to me but rather a judgment by both sides that they had something to gain if I presided.
“Let me guess,” I said to the prosecutor. “The mother’s not sure she wants to testify against her daughter so your case may go down the tubes.” I turned to the defense. “And the new deal is going to be a bit tougher on Andrea than the one I turned down in intake, isn’t that right, Ms. Lankford?”
The lawyers looked at each other, then at me, and grinned.
“Well, yes, Judge,” the defense attorney said. “But I’m willing to accept the deal.”
“So what is this new proposal?”
“My client would admit to Attempted Assault in the Third Degree and would be placed on probation for twelve months.”
“No, eighteen months,” the prosecutor broke in.
“Well, I think twelve is more reasonable,” said the defense. “Don’t forget, we’re accepting probation, which means a juvenile delinquency record, and you probably can’t get the mother to testify anyway.”
The prosecutor took his hands off the arms of his chair, then grabbed them again, leaning towards Andrea’s lawyer. “You know, I really resent your re-opening negotiations in front of the judge. We had a deal. I’m going to withdraw it.”
“That’s – ” Andrea’s lawyer began.
“Let’s hold for a moment, can we, folks?” I broke in. “Why don’t I read the hospital report again? I can tell you, Ms. Lankford, that putting aside anything the report says for the moment, eighteen months of probation is a lucky break for your client. If there were a trial and you lost, the emergency psych report alone would make any judge hesitant to leave your client in the community at the end of the trial. The bottom line of this seems only to be about the willingness of the mother to prosecute. But let’s leave all that for the moment. I’m going to read the report.”
The report gave Andrea’s diagnosis as “Borderline Personality Disorder.” Serious stuff, made the more problematic for me by the imprecision of the label’s meaning. Technically, the diagnosis meant that Andrea had behaved in pathological ways during her mental health interview and had given pathological responses to questions and other stimuli on various tests. Her behavior and responses matched a sufficient number of the criteria that mental health professionals have developed for defining this particular personality disorder. The trouble is that schizophrenics, sociopaths, bipolar depressives and, yes, even “normal” people may also exhibit, on occasion, some of these kinds of behaviors and responses. More than a few psychologists have told me: “You try to rule out every other diagnosis first. Good clinicians know a borderline personality when they meet one.”
In other words, Andrea’s behavior, character, temperament, emotions, and mental states weren’t always quite right. But then I already knew that. A twelve year-old without a borderline personality, for example, wouldn’t give her mother a shove on a flight of stairs because Mom demands that she pick up an ice cream wrapper. Most children would pick up the wrapper or, in fact, would probably throw it in the garbage to begin with.
That is, borderline personalities can be dangerous. Andrea’s mix, though, included a special spice. She exhibited what mental health professionals call “homicidal ideation,” and more: She went so far as to say she wanted to kill people, and had gone about gathering over time the means with which to do it.
Expert witnesses frequently provided me with reports and testimony intended to answer difficult questions about children such as Andrea. I respected these experts, who were well-qualified and dedicated to helping. Yet I often found that among themselves they arrived at different, though equally expert, opinions from the same facts. Most seemed more confident when advising on how to treat pathology than in explaining how a suffering child got to be that way. The reports on Andrea, while helpful, nevertheless required that I formulate plain language for what ailed the child and for what possibly could have gone wrong in her specific case. For this purpose I had the benefit of having seen Andrea in action.
With the two lawyers watching me in the robing room I spent a few moment thinking it over, then said to them:
“This is an extremely hurt and frightened child. The report doesn’t tell me why, and Andrea apparently doesn’t want to talk about it.” To the prosecutor I added: “Of course I understand your problem with the evidence, which is that you probably don’t have any evidence at all. The mother may not testify. So, from your standpoint the plea and probation are better than nothing. But I can’t put the Court’s stamp on that. It’s not an appropriate resolution for Andrea’s best interests or for the protection of the community.”
“Well, there’s a good chance I’m going to have to withdraw the case,” the prosecutor said, “and that will leave her in the community with no supervision at all.”
Sensing victory, Andrea’s lawyer lay low.
“Why doesn’t the mother want to testify?” I asked the prosecutor.
“Judge, she won’t exactly tell me. She says she’s tired of the whole process.”
“What was her reaction to the death threats and the arsenal that was in her house?”
“She’s pretty upset about it. In fact, I don’t think she really wants her daughter at home, but she doesn’t seem to be able to make a plan or have any energy for planning.”
“Well, why haven’t you charged Andrea with the possession of weapons? You don’t need the mother to prove that.”
The prosecutor looked at me, then said: “The police botched the search and seizure, Judge. It was illegal. I’d rather not talk about it.”
“But the guns and stuff are out of the home?”
The robing room was quiet for several seconds. Then I said: “Well, I’m going to get child protective services involved. The mother’s unwillingness to continue to seek help for a child as troubled as this may be child neglect. Apparently the child has no other reliable relatives. Andrea may need to be in foster care.”
“Judge, I object – ” Andrea’s lawyer began.
“It’s out of your hands,” I interrupted. “The prosecution is withdrawing the case, right?”
“Right,” the prosecutor said.
“So there’s no case at all. I’m ordering an immediate child welfare investigation into the child’s home and family life and a report to me before the end of the week. Meanwhile, since for some reason the hospital won’t keep her any more, I’ll send her to the juvenile detention center. And I’m putting a suicide watch notice on the detention order.”
A caseworker was supposed to deliver the investigation report several days later but didn’t, asking, through a supervisor in court, for a week’s extension due to “caseload pressures.” I gave her two days, my tone with the supervisor frosting the humid courtroom. At the same hearing, the child’s lawyer claimed that Andrea was “decompensating” in the detention center, and demanded the immediate trial on the delinquency charge to which New York juvenile crime law entitled her. Knowing that the prosecutor would be unable to present any evidence, Andrea’s lawyer was presenting this demand as a tactic to get Andrea home.
I ordered Andrea to be produced in court the next day and sent her again to be seen by the court’s mental health clinic. The psychologist reported just before lunch, confirming what the hospital’s psychiatrist and the detention center’s psychologist concluded: Andrea was not presently a threat to herself or others, but was depressed (and also a borderline personality).
I ordered New York City officials to take Andrea from the courthouse into foster care and place her immediately into a residential treatment center. The City complied that night.
My vanity over the years has told me that my order was a mistake. I moved too fast, without first spending the time to get the know the child better. I should have talked with Andrea in the robing room, leaned towards her in my shirt sleeves and looked into her eyes, into her soul if I could, and said:
“Andrea, why are you so sad? Tell me what’s scaring you.” I like to think I could have made a difference that way.
Death intervened. Andrea was a suicide at the treatment center two days after she arrived there.
Sometimes I think that the spirits of wise men really do sit in the clouds and mock us.
Psychiatrists, psychologists, social workers, counselors, and teachers speak with one voice of the importance of training parents to build children’s self-esteem – to create “optimistic” children. The windows of my courtroom opened to an alley between buildings. The sunny thoughts of these experts contrasted sharply with the darkness of the alley. Missing from their advice were the kinds of specific instructions on how to proceed that I was so grateful to find, for example, in the boxes that contained my son’s Lego models.
What goes wrong with our children? What went wrong with Andrea?
Many years and thirty thousand cases later, I have begun to think I know what my wife understood instinctively at the outset of my judicial career.
We forget that they were once our precious little babies, that’s what I think.
Spurred by hormones and happiness, we bring a natural energy and euphoria to the parenting of our newborns. We don’t think about it, we do it. We sleep less and spend less time (or none at all) on private enjoyments. Our babies come first. We feed and change them, smile and coo at them, make goo-goo eyes and baby talk, lift them up high, sing to them, bounce them on our knees, and tickle them. We buy them things, sometimes months or even years before they can use them. We e-mail hundreds of photos, observe and talk about them endlessly.
We worry about our babies, too. Oh yes. But somehow the worry seems less like pointless anxiety than a perfectly normal way to learn how better to care for them, by the sharing our worrying yields from spouses, friends, sisters, brothers, and a trusted pediatrician.
In unforgettable moments at cribside we stare and wonder at them. We say to ourselves: This is what it’s all about.
Parental energy, focus, and dedication of this kind assure the physical and emotional well-being of children. In that mental and emotional state good parenting is a given and it is not possible for a parent willfully to cause harm.
It’s not just parents who lose focus. The caseworker who failed to deliver the child welfare investigation about Andrea, the supervisor who gave her too many cases to handle, the administrators who provided insufficient staff to the supervisor to create a manageable workload for the caseworker, the politicians who passed the budget that gave the caseworker such a miserably low wage for the difficulty of the work, the hospital and court clinic and detention facility that decided this suicidal young woman was not a danger to herself or others – must all have lost (perhaps never had) that special connection to Andrea that would have made her their precious little baby.
Am I missing the boat here? The children who find themselves in the system that is supposed to help, even save, them: Whose precious little babies are they, really?
I turn for answers, as with anyone who’s worn the robe, to the evidence.