Family Court Judge Will Not Place Children in Troubled Detention Facilities; JRP Head Opposes Placements to All OCFS Detention Facilities

A Family Court judge in Manhattan ruled that children should not be placed in four detention facilities operated by the State Office of Children and Family Services that have been criticized by the U.S. Department of Justice for unconstitutional and excessive force by members of the staff and for lack of mental health facilities. The Legal Aid Society has filed a federal civil rights class action lawsuit against OCFS for providing substandard and abusive care in its residential facilities.

Tamara Steckler, Attorney-in-Charge of the Juvenile Rights Practice, told the New York Law Journal that while The Legal Aid Sociey welcomed the judge's limitation on placements, it opposes sending children to any of the OCSF residential facilities named in the lawsuit because all these institutions share the same problems. She added that she is convinced that "there are alternative placements available in the community."


The New York Law Journal
In Sentencings, Judge Says Youths Should Not Go to Troubled Facilities
Jeff Storey

Striving to balance public safety and the "best interests" of two juvenile delinquents, a Manhattan Family Court judge has sentenced the youths to one year in a state facility but decreed that neither should be sent to any of four institutions criticized by the U.S. Department of Justice last summer for providing harsh and substandard care.

The rulings by Judge Susan Larabee highlight the dilemmas faced by Family Court judges as they sift the facts of juvenile dispositions to determine what mix of supervision, treatment or confinement to impose. And her decisions come against the backdrop of widespread and growing dissatisfaction with a system that frequently proscribes incarceration for even minor offenses.

"The Court shares Respondent's attorney's concern about the deficiencies highlighted in the Department of Justice Report as well as other long-standing inadequacies in the provision of necessary psychiatric, psychological, educational and other services to delinquent juveniles in placement," Judge Larabee said in Matter of Henry F., D-50976/09.

However, the judge concluded that the delinquent's "significant history of anti-social behavior and physical violence, the Court's exhaustion of every available home-based disposition and the Court's finding that Respondent can not be safely maintained in the community at this time" left her no alternative but to order placement in a state facility, though not in any of the four identified as violating constitutional standards.

The judge's ruling was mirrored in Matter of Hamlet D., D-27927/09, in which she issued an identical order. She imposed several conditions, including that the Office of Children and Family Services (OCFS) conduct an immediate psychiatric evaluation in each case and follow up any recommendations; obtain an education plan for each youth and offer the "appropriate" required services; and provide a written report to the delinquents' lawyers and the Corporation Counsel within 90 days.

The Manhattan Family Court decisons appears on page 45 of the print edition of today's Law Journal.

The Justice Department reported on Aug. 14 that staff at the Lansing, Louis Gossett and Tryon residential centers and the Tryon girls residential center "routinely used unsafe applications of force" causing "an alarming number of serious injuries." Moreover, the federal agency charged that the four OCFS facilities do not provide adequate mental health care or substance abuse services.

OCFS, which did not contest the report, is negotiating with the Justice Department to develop a package of remedial measures that would avoid a lawsuit or, in the extreme case, a federal takeover of the facilities.

In light of the report and other recent studies, the Legal Aid Society, which represented Henry F. and Hamlet D., has been routinely arguing, when requested by its clients, that delinquents should be kept in their home communities where they could receive needed services. They also maintain that the risk of recidivism would be lower than from placement with OCFS facilities.

"There are too many people in my system," OCFS Commissioner Gladys Carrion said in a recent interview with the Law Journal. "The system is broken."

Ms. Carrion met with Family Court judges last year after the Justice Department report was released. In light of the federal government's "disturbing" findings, court administrators sent a memorandum to judges reminding them that the standard for placing delinquents in OCFS facilities is "dangerousness" and urging them to consider community resources that provide less restrictive alternatives to detention (NYLJ, Dec. 15, 2009).

Court figures show that placements to OCFS from New York City have been declining, although the Justice Department report may not be the only reason.

Placements dropped 14.6 percent, to 286 from 335, from the third quarter to the fourth quarter of 2009, after the report was issued. Placements were down 6.5 percent for the year as whole.

Statutory Balance

For Henry F. and Hamlet D., Judge Larabee decided there was no reasonable alternative to confinement, finding it was "extremely likely" that both would commit other acts of delinquency if not removed from the community.

"There is no question that juveniles civilly committed by New York State have a constitutional right to be free from harm," the judge said in both decisions. "However, recognition of this right does not mean that a juvenile has a right to be free of all placements in State custody where application of the statutory balancing process between the needs and best interest of juveniles and the community's need for protection compels removal of a child from his or her home."

Henry F., who was arrested for selling crack cocaine to an undercover police officer, had a history of "aggressive behavior" toward other juveniles and had participated in a violent gun-point robbery for which he showed no remorse, the judge said.

Moreover, he refused to attend school, was beyond his mother's control and often did not comply with the requirements of community programs, even when court-ordered.

Hamlet D. was arrested for attacking a school safety officer. As a pre-schooler, he had engaged in head banging and, according to his grandmother, was "depressed and angry at the world." He had participated in multiple robberies and exhibited "predatory behavior."

The judge observed that Hamlet D.'s attorney had provided "no information that any programs exist or are available that would provide Respondent with services different than the ones that have already been provided and have been unsuccessful."

'No Legal Authority'

Edward Borges, a spokesman for OCFS, said that judges "have no legal authority" to dictate where the agency sends youths. That decision is made based solely on a two-week-long evaluation and needs assessment by the agency, he added.

Judge Edwina G. Richardson-Mendelson, the administrative judge of New York City Family Court, acknowledged that the law "does not give Family Court judges oversight authority over OCFS."

A judge can order services she deems necessary, require progress reports and place cases on the calendar for review.

"The law otherwise gives [OCFS] a great deal of administrative discretion regarding juvenile placements," Judge Richardson-Mendelson said, adding that judges' lack of control over the agency is a source of frustration for many of them.

Angela Albertus, acting chief of the Corporation Counsel's Family Court division, said in a statement that Judge Larabee's decisions "appropriately recognize the importance of public safety in fashioning case dispositions. In cases where youth must be placed in a facility to protect the community, the state must ensure that its facilities keep these youth safe and provide appropriate rehabilitative services. The court's orders appropriately hold OCFS accountable for these necessary services."

Tamara Steckler, the attorney-in-charge of Legal Aid's juvenile rights practice, said the agency welcomed the judge's limitation on placements, but it is opposing sentences to all OCFS centers, not just the four in the Justice Department report, because it believes all the institutions share the same problems.

Moreover, Legal Aid, which has filed a federal civil rights suit against OCFS, is convinced "there are alternative placements available in the community."

As for the rest of the judge's requirements, Ms. Steckler said, "It will be interesting to see if OCFS can implement the conditions in the order."

According to a court system memo, Ms. Carrion reported at her meeting with Family Court judges that the agency was having difficulty educating and treating delinquents in its care.

For example, although 80 percent of the children at OCFS facilities have mental health problems, she acknowledged the agency "is unable to keep mental health clinicians and that [OCFS does not] have the mental health staff to accommodate the needs of these children."

Mr. Borges said the population of OCFS' 24 facilities, most located upstate, had been around the mid- to low-900s. At one point this week, however, the agency was housing fewer than 800 juveniles.

Representing the Law Department were Cynthia Kao in Henry F. and Cecilia Williams in Hamlet D.

Appearing for Legal Aid were Norah Van Dusen in Henry F. and Brian Baum in Hamlet D.