NY Family Court orders Riochester couple to stop having children
Submitted by Charles Slater:No more kids, judge orders local couple
Drug use, homelessness, lack of care prompt a unique ruling.
By Michael Zeigler
Staff writer
(May 8, 2004) — In six years, a cocaine-addicted, unwed and oftenhomeless Rochester couple has had four children and lost them all to foster care.
Enough is enough, a judge has ruled.
In a decision that could be the first of its kind in the nation, Monroe County Family Court Judge Marilyn L. O’Connor has ordered the couple to have no more children until they’re reunited with the children they already have and prove they can take care of them.
Although noting that her order is “unusual,” O’Connor cited the impact of neglect on the children and the $32 million a year paid annually for foster care in Monroe County.
”All babies deserve more than to be born to parents who have proven they cannot possibly raise or parent a child,” she wrote. “This neglected existence is an immense burden to place on a child and on society.
”The cycle of neglect often created by such births needs to stop. Our society has reached the breaking point with respect to raising neglected children, often born with extraordinary needs.
”One only need look at our schools, our jails, our Division of Human and Health Services budgets, and our Family Courts to see that a serious change of direction is necessary in the interests of children, the taxpayers, and the community as a whole.”
The couple, who are identified only by their first names and last initial in the decision, couldn’t be reached for comment.
If they violate the ruling, they could be found in contempt of court and jailed.
A civil-liberties advocate called the ruling “outrageous and inappropriate.”
”What the judge has done here is highly unusual,” said Anna Schissel, staff attorney for the Reproductive Rights Project of the New York Civil Liberties Union. “I don’t know of any precedent that would permit a judge to do this. And even if there were a precedent, it … violates the United States Constitution and the New York Constitution.
”The Supreme Court has ruled again and again that the right to have a child or not to have a child is at the heart of a cluster of constitutionally protected choices that stem from the right of privacy,” she said.
But Rochester lawyer Brian J. Barney, chairman of the Family Law Section of the New York State Bar Association, disagreed. By putting a potential penalty on the couple’s actions, O’Connor was trying to force the couple to get help for their addictions so they can reclaim their children, he said.
”My initial reaction was that she went off half-cocked, but she didn’t. This is a well-thought-out attempt to try to create some methodology to somehow make these individuals responsible and attempt to create a solution to the problem.”
In researching her ruling, O’Connor and her law clerk, Patricia Gallaher, could find no other reported case in the nation in which a judge ordered a couple to stop producing children.
Because judges don’t always submit their decisions to law journals for publication, however, it’s possible that another judge has issued a similar but unreported decision.
A women’s rights advocate predicted that O’Connor’s decision would be overturned.
”As far as I know, contraceptive penalties by and large have been overwhelmingly held to be unconstitutional,” said Lynn M. Paltrow, founder and executive director of National Advocates for Pregnant Women, an organization that lobbies on behalf of women and families.
O’Connor noted in her decision that the only similar case in New York was overturned. In that 1986 case, a judge ordered a couple to have family planning but did not ban a pregnancy.
Lawyer Eftihia Bourtis, who was the law guardian for the local couple’s children, said O’Connor is following the state Social Services Law, which requires the county Department of Human and Health Services to provide family-planning and pregnancy-prevention services to welfare recipients.
”My interest is only in protecting these children,” Bourtis said.
”In reading Judge O’Connor’s order, I can say that she followed the statute. She’s the judge, and we’re obligated to follow her ruling until someone else says we can’t.”
Rita Lewis, a former nun who works with Rochester’s homeless and knows the couple, said she’s pained by the decision.
”Basically, they’re caring individuals, deep down inside,” Lewis said. “I know that they love their children. But are they able to care for them? No. It’s a very unfortunate situation.”
The couple’s oldest child is 6 and the youngest just turned 1. Three children tested positive for cocaine after their birth; one wasn’t tested.
Eight days after the fourth child, a girl, was born in March 2003, the Department of Human and Health Services filed a petition asking O’Connor to find that the child was neglected because of her mother’s cocaine use and the child’s positive test for cocaine. O’Connor put the child into foster care and ordered a trial on the allegation.
The mother, who had lost her oldest three children, all boys, to foster care, waived her right to a lawyer and said she wanted the child to live with a relative. Neither the mother nor the father appeared for the trial.
In testimony cited by O’Connor in her decision, a caseworker noted the mother’s history of giving birth to “cocaine babies” and said the mother hadn’t followed through with numerous attempts at drug treatment.
The caseworker also said that the mother and father admitted they abused drugs, had no place for the baby to live, and hadn’t inquired about the baby since she was placed in foster care.
Although the Department of Human and Health Services didn’t request that the couple be given family planning or be banned from having children, O’Connor added those conditions to her finding.
”This court believes the constitutional right to have children is overcome when society must bear the financial and everyday actual burden of care,” she wrote. “Constitutional rights provide protection of basic rights but there is no basic right to be protected when the potential ‘right to have a child’ would equal the right to neglect a child and commit a crime against that child, or force others to raise it, both physically and at public expense.”
Schissel said the NYCLU would be interested in helping the couple appeal the decision if they decide they want to.
”They might not know the judge’s order is illegal,” she said.
Joyce R. Parker, who practices family law for Harris Beach, said the decision could spur discussions about how to deal with similar families.
”I deeply feel that there are problems that Family Court sees that we are not hearing about as a community as a whole,” she said. “We have to start finding solutions to these things. This decision highlights those problems for us.”
MZEIGLER@DemocratandChronicle.com
To read the decision, go to:
http://www.courts.state.ny.us/reporter/3dseries/2004/ 2004_50286.htm
