THE CHANGING ROLE OF THE FAMILY COURTJUDGE: NEW WAYS OF STEMMING

THE TIDE

Honorable Anthony J. Sciolino*

"The flood of cases (into the courts) shows no sign of letting up.We can either bail faster or look for new ways to stem the tide."'

Hon. Judith S. Kaye

"UNLESS someone like youcares a whole awful lot,

nothing is going to get better.It's not."2

Dr. Seuss

The Russian revolutionary leader Vladimir Ilyich Lenin (1870-1924) is reputed to have said: "There are no more reactionary people inthe world than judges."'3 That sentiment may have accurately describedthe judiciary in early twentieth-century Czarist Russia but certainly notin early twenty-first century America, particularly in family courts.During the last twenty years, in response to the nature and number ofcases overwhelming family court dockets nationwide, the role of familycourt judges has changed dramatically. Like their colleagues in otherstates, New York's family court judges are responding in a manner thatis neither reactionary nor traditional; to the contrary, they are assumingjudicial roles and approaches that are quite unorthodox. Perhaps evenLenin would have approved.

New York State's Chief Judge Judith S. Kaye wrote an article, pub-lished in Newsweek in 1999,' that described this revolutionary state ofaffairs. The article points out that judges today are grappling with ever-

* Monroe County Family Court Judge, Rochester, NY. Columbia University, B.A. 1967;

Cornell Law School, J.D. 1970; St. Bernard's School of Theology and Ministry, M.A. Theology1998.

1 Judith S. Kaye, Making the Case fr Hands-On Courts, NEWSWEEK, Oct. 11, 1999, at 13.2 DR. SEUSS, THE LoRAx 58 (1971).

3 THE NEW LAWYER'S WIT AND WISDOM: QUOTATIONS ON THE LEGAL PROFESSION, IN

BRIEF 86 (Bruce Nash & Allan Zullo, eds., 2001).4 Kaye, supra note 1, at 13.

396 CARDOZO PUB. LAW, POLICY & ETHICS J [

exploding caseloads fueled by drug abuse, domestic violence, and familydysfunction. Traditional judicial approaches to these relatively new is-sues were yielding unsatisfactory results. Drug addicts engaging incriminal activities to support their habits, for example, keep returning tocourt again and again, notwithstanding repeated sentences of incarcera-tion. Battered women obtain orders of protection, return to the samehome, and are beaten again. Neglectful and abusive parents continue toput their children at risk despite repeated court interventions. Childrenremoved from their parents languish in foster care for intolerably longperiods of time. "Every legal right of the litigants is protected," ChiefJudge Kaye lamented, "all procedures followed, yet we aren't making adent in the underlying problem. '" 5

More efficient case processing, a traditional measure of judicial per-formance, she asserted, is not the whole answer. "We also need to take astep back and ask, Is there a better way to do this?"6 Answering her ownquestion, she noted that across the country, certain judges are rethink-ing the business as usual approach, and the same phenomenon is occur-ring in New York State.7 As examples, she cited New York's then-existing fifteen adult drug courts, the development of family treatmentcourts, community courts, and domestic violence courts. 8 In all thesenontraditional courts, judges are active participants in a problem-solvingprocess, as opposed to detached referees making passionless judgmentcalls.

In the Newsweek article, Judge Kaye described what was differentabout the approach taken in these innovative courts:

First is the court's belief that we can and should play a role in trying tosolve the problems that are fueling our caseloads. Second is the beliefthat outcomes-not just process and precedents-matter .... Thirdis the recognition that courts' coercive powers can change people's be-havior .... Finally, we've learned that courts can't carry out this prob-lem-solving role alone. Collaborations with government agencies andcommunity groups are essential. 9

5 Id.6 Id.7 Id.8 There are currently 108 Drug Treatment Courts and thirteen Integrated Domestic Vio-

lence Courts operating in New York State. New York State Unified Court System, Initiativesand Programs (2004), at http://www.nycourts.gov/ip/drugcourts/index.shtm; http://www.nycourts.gov/ip/domesticviolence/idvcourts.shtml.

9 Kaye, supra note 1, at 13.

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Make no mistake, problem-solving courts are still courts. Technically,they are not new courts but actually court subdivisions established andstaffed pursuant to the court system's administrative authority. Prob-lem-solving courts are typically located alongside traditional court divi-sions, and exercise existing statutory authority.

These innovative courts, like their traditional counterparts, striveto ensure due process, engage in neutral fact-finding, and dispense fairand impartial justice. They differ in that they have developed a newparadigm for accomplishing traditional goals, a paradigm which incor-porates new thinking, technology, staffing, linkages, and a collaborativeesprit de corps among stakeholders. Success has been redefined and newgoals added; for example, the goal of improving the effectiveness ofcourt sanctions in promoting positive behaviors. Their overall approachaims to achieve more constructive interventions than conventional caseresolutions.

Chief Judge Kaye concluded her article by noting that not every-one, judges and lawyers alike, agree with this nontraditional judicial ap-proach. "Some may argue that such hands-on involvement clashes withour branch's traditional dignity and reserve. But what's the alternative?The flood of cases shows no sign of letting up. We can either bail fasteror look for new ways to stem the tide."'"

New York's experience with twenty-first century judicial reality issimilar to that of other states. For instance, Chief Justice Kathleen Blatzhas commented that in Minnesota's busy trial courts

EJ]udges are very frustrated .... I think the innovation that we'reseeing now is a result of judges processing cases like a vegetable fac-tory. Instead of cans of peas, you've got cases. You just move 'em,move 'em, move 'em. One of my colleagues on the bench said: "Youknow, I feel like I work for McJustice: we sure aren't good for you, butwe are fast."''

Conventional case processing may dispose of the legal issues inundatingcourtrooms in all fifty states, but in certain types of cases, particularlyfamily court cases, it does little to address the underlying problems thatresult in parties returning to court again and again. In too many cases,judges miss the opportunity to help change the harmful behaviors of

10 Id. (emphasis added).11 Greg Berman, What Is a Traditional Judge Anyway? Problem Solving in the State Courts, 84

JUDICATURE 78, 80 (2000).

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people appearing repeatedly before them. There is a saying that insanityis "doing the same thing over and over again and expecting a differentresult." To escape the absurdity of such insanity, judges began to askthemselves how court interventions could be more productive, and whatcould be done differently to achieve better outcomes.

DRUG COURTS

New York's first adult drug court opened in my home town ofRochester, New York (Monroe County), in 1995.12 My colleague, CityCourt Judge John Schwartz decided to try a different approach afteryears of presiding over a busy urban criminal court where drug defend-ants appeared trapped in a revolving door in and out of the courthouse.He put together a team of reform-minded stakeholders including prose-cutors, defense lawyers, treatment providers, and probation officers.Following a lengthy, and sometimes contentious gestational process, theRochester City Drug Court was born. In certain segments of our localcommunity, the initial public reaction was cool to downright hostile;"soft on crime" was the favored criticism. After more than ten years ofoperation, however, the impressive results achieved by drug courts withnumerous participants have made converts of many early detractors.Today, almost a decade later, there are more than 120 drug courtsspread across New York State, and about one thousand nationwide. 13

The Office of Court Administration and the Center for Court In-novation recently documented the efficacy of New York's drug courts byanalyzing eleven drug courts, including courts in Buffalo, Ithaca, Lack-awanna, Rochester, Syracuse, and Tonawanda. 4 The study found thatNew York's drug courts reduced recidivism by an average of nearlythirty-two percent in the twelve-month post-program period and an av-erage of twenty-nine percent over a three-year post-arrest period. 15 The

12 N.Y. STATE COMM'N ON DRUGS & THE COURTS, CONFRONTING THE CYCLE OF AD-

DICTION & RECIDIVISM: A REPORT TO CHIEF JUDGE JUDITH KAYE (June 2000), available at.

http://nycourts.gov/reports/addictionrecidivism.shtml.13 Office of Justice Programs, Drug Court Clearinghouse and Technical Assistance Project at

American University, Summary of Drug Court Activity by State and County (2004) (stating

that, as of September 2, 2004, 117 Drug Courts are being operated in New York State and 52are being planned), at http:l/spa.american.edu/justice/publicationslus.drugcourts.PDF#NewYork.

14 MICHAEL REMPEL, ET AL., THE NEW YORK STATE ADULT DRUG COURT EVALUATION:

POLICIES, PARTICIPANTS AND IMPACTS (Oct. 2003), available at http://www.courtinnovation.

org/pdf/drug-court-eval.PDF.15 Id.

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evaluation is the first in the nation to demonstrate a meaningful reduc-tion in recidivism consistently across a large number of sites over a long-term tracking period. It is also the most comprehensive statewide evalu-ation ever published.

In the pre-drug court era, when ordering defendants into drugtreatment as a condition of sentencing or probation, judges were largelyuninvolved with monitoring compliance with treatment conditions. Infact, it was typical for defendants to be terminated from treatment with-out the judge's knowledge. Overwhelming caseloads (with an increasingnumber of addicts committing crimes to feed their addiction) hadcaused the prior practice of hands-on judicial monitoring of a defen-dant's progress to be replaced with an expedited case managementmodel, which relied on segmented case management, sentencing guide-lines, negotiated pleas, and other strategies to speed up the process. 16

The results were both predictable and unacceptable. Judges, pro-bation officers, prosecutors, and defense counsel accepted responsibilityfor only a small segment of a defendant's case. Often, numerous judi-cial system personnel saw the defendant over the course of a single casebut because of piecemeal authority, none were able to monitor a singlecase in its entirety. The defendant quickly learned how to manipulatethe situation to thwart rehabilitation and beat the system-recidivismbecame rampant.

Drug courts, on the other hand, are a significant departure fromthat former system, as the process has been transformed by involvingjudges directly in the treatment and supervision of defendants. Duringregularly scheduled status hearings, which take place in open court, thejudge holds the defendant publicly accountable for progress in treatmentand attaining related goals. The judge uses progressive incentives to re-ward success and progressive sanctions to discourage undesirable con-duct. Sanctions closely follow violations and are designed as incentivesfor compliance. To increase the likelihood of successful transition fromaddiction to sobriety, drug courts link defendants to community ser-vices like job training, health care, education, and housing.

Once in treatment, defendants are closely monitored, reporting tocourt at regular intervals, and submitting to frequent drug testing. Inmost drug courts, defendants plead guilty at the outset of the case withthe understanding that if they complete court-mandated treatment, the

16 See Judith S. Kaye, Delivering Justice Today: A Problem-Solving Approach, 22 YALE L. &

POL'Y REV. 125 (2004).

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court will vacate the plea and dismiss the charge or reduce the sentence.Examples of how drug court judges act in a nontraditional manner in-clude: (1) speaking directly to the defendant rather than defense coun-sel; (2) working collaboratively with a treatment team; (3) being aproactive participant in a non-adversarial process; (4) applying a direct,immediate and personal approach to each drug offender; and (5) recog-nizing success with praise, applause, rewards, or a graduation ceremonyin the courtroom. 17 This is not behavior most people have come toexpect from judges.

Various people have criticized drug courts and other problem-solv-ing courts as a radical and unwarranted departure from convention.Some of my colleagues, for example, disagree with the hands-on ap-proach of these courts and prefer not to preside in them. However, itcould be argued that there is nothing radical or particularly new abouthow drug courts operate. After all, court procedures have traditionallybeen adapted to deal with the underlying circumstances of changingcase situations.

Throughout history, advances in science and technology, as well asshifting societal mores, have caused judges to rethink the effective deliv-ery of justice. Drug courts have merely evolved to reflect the realities ofincreasing substance abuse among adolescent and adult offenders.These realities necessitate effective treatment programs that recognizenot only the seriousness of drug abuse, but that it is a debilitating andpersistent disorder, not easily overcome. Since drug addiction does nothappen overnight and cannot be cured overnight, relapse and intermit-tent progress are part of most successful drug rehabilitations. Drugusers are most susceptible to successful intervention when in crisis, butare typically in denial about their problem and will do everything possi-ble to avoid any responsibility. Thus, users will often try to evade thecourt and its programs, as well as make excuses for program failure.18

By refusing to adapt judicial responses to the realities of underlyingsocietal problems fueling caseloads, courts are doomed to continue toget the same unacceptable results. As a family court judge for over eigh-teen years, I, along with many other judges, refuse to be part of a system

17 See Jo Ann Ferdinand, The Changing Face ofJustice: The Judicial Perspective, 29 FORDHAM

URB. L.J. 2011-14 (2002) (discussing the effect on proceedings of the judge, prosecution, anddefense sharing the goal of successful treatment).

18 Judge Jeffrey S. Tauber, Drug Courts: A Judicial Manual, 1994 CAL. CTR. FOR JUD.

EDUC. & RES 5-6.

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that settles for failure when changing the system can increase thechances of success.

The success of criminal drug treatment courts, as measured by thenumber of defendants restored to lives of sobriety, law-abiding behavior,and self-respect, has encouraged judges to adapt that model to othercourts. For example, mental health courts link mentally ill offenders tocommunity-based treatment instead of incarceration; family treatmentcourts help substance-abusing parents charged with neglect or abuse be-come better parents; permanency courts achieve permanency for chil-dren in foster care more quickly; and, particularly close to my heart,juvenile drug treatment courts help substance abusing adolescents breakout of self-destructive lifestyles.

JUVENILE DRUG TREATMENT COURTS

As noted previously, New York's first adult criminal drug court wasdeveloped in my home town of Rochester in 1995. New York's firstjuvenile drug treatment court, also developed in Rochester, opened inJune 2000. I am proud to be its presiding judge. Now in operation forfive years, this innovative problem-solving court, which began as an ex-periment to improve outcomes for drug abusing juvenile respondents inMonroe County Family Court, produces remarkable success stories. 9

What prompted the creation of this court was the realization thattoo many Juvenile Delinquents (D) and Persons In Need of Supervi-sion (PINS) were slipping through the cracks of the existing familycourt process. Either defendants were not identified as drug users be-cause of inadequate screening protocols, or, once identified, were notgetting the help they needed to change their harmful behaviors. Whenthe defendant profile data of Rochester's adult drug court was investi-gated, which found 70% of defendants had appeared in Family Court asjuveniles,20 the argument for instituting a juvenile treatment court be-came compelling.

In preparation for becoming the presiding judge of the juveniledrug treatment court, I attended week-long training courses at the Na-

19 See Anthony J. Sciolino, Juvenile Drug Treatment Court Uses "Outside the Box" Thinking to

Recover Lives of Youngsters, 74 MAY N.Y. ST. B.J. 37 (2002).20 This statistic comes from an internal caseload study of Rochester City Drug Court done

in 1999 by Ronald W. Pawelchek, Chief Clerk of Monroe County Family Court. He surveyedthe City Drug Court defendant population ages 16-19 at the time of the survey and found that70% of that age population had had Family Court case involvement.

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tional Judicial College in Reno, Nevada, and at the National DrugCourt Institute in Williamsburg, Virginia.2 Both provided excellenttraining and access to presiding judges of existing juvenile treatmentcourts, whose enthusiasm for the treatment court concept bordered onthe evangelical. I also observed a number of model juvenile treatmentcourts in operation.

Since the launch of our juvenile court, treatment team membersand I have attended conferences of the National and State Associationsof Drug Court Professionals at which training and networking opportu-nities are provided. Education on topics such as adolescent develop-ment, adolescent brain functioning, drug pharmacology, family systemstheory, and related subjects, have proven to be invaluable in developingsuccessful strategies to address the needs of adolescent respondents andtheir families. The quality and extent of training I received in 2000 toprepare to be a juvenile treatment court judge was substantially morerigorous than the training I received in 1986 as a newly elected familycourt judge.

In my role as presiding judge, I cede my traditional dictatorial pre-rogative as decision-maker and agree to work collaboratively with a teamof service providers from the treatment, juvenile justice, social services,school, and mental health communities. As a team, we reach out andpartner with other community groups who share in our vision. Ourapproach is "holistic." The adversarial system is de-emphasized, proce-dures are less formal and less punitive and responses are geared towardsthe needs and strengths of each youngster. "Tough love" principles areapplied to unacceptable behavior. Good behavior is rewarded, poor be-havior is punished. With adolescents, rewards work better than sanc-tions to change problem attitudes and behaviors. There is much moreaccountability, communication, and coordination than in conventionaljuvenile courts.22

21 See The National Judicial College, http://www.judges.org; National Drug Court Institute,

http://ndci.org (last visited Apr. 10, 2004).22 Other characteristics of our treatment court include:

" Earlier and more comprehensive intake assessments

" Greater focus on the functioning of the family

" Closer integration of the information obtained during the intake and assessmentprocess with subsequent decisions

" Greater coordination among the court, the treatment community, the school sys-tem, and other community agencies in responding to the needs of the juvenile andthe family

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Juvenile drug courts are part of a coordinated, comprehensive jus-tice system and community response to the realities of adolescent sub-stance abuse. Judges acquire and employ skills beyond those generallyobserved in traditional juvenile courtrooms. These skills include em-phatic listening; sensitivity; effective communication; team building;team, court, and community leadership; and good humor. Expertise isdeveloped in areas of addiction/alcoholism, pharmacology, forensicanalysis, adolescent/family psychology, treatment models, and counsel-ing techniques. At various times, a juvenile treatment court judge is

called upon to act in the role of salesperson, substitute parent, cheer-leader, arm twister, evangelist, planner, fundraiser (within the con-straints of the Canons of Judicial Ethics), and consensus builder.13

In my more five years as presiding judge of Monroe County's Juve-nile Drug Treatment Court, I have attended one high school gradua-tion, two high school graduation parties, six residential treatment centergraduations, and one American Legion baseball game. I also attendedthe funeral of a juvenile respondent's father. In my courtroom, I haveled countless rounds of applause for good attitude/behavior and ex-pressed disappointment at poor attitude/behavior. I shake respondents'hands, pat them on the back, and hug them. I hand out rewards includ-ing tee shirts, fast-food restaurant coupons, and writing journals. I handout sanctions including disappointed looks, writing assignments, loss ofcurfew, and detention. And I have shed a tear or two, as well. This isnot the typical modus operandi of a family court judge, but in some

" More active and continuous judicial supervision of both the juvenile and/or family

members' progress in treatment and compliance with other program conditions

" Immediate judicial use of sanctions for noncompliance and incentive/rewards to

recognize progress

" Increasing reliance on a range of personal and skill-development programs such as

music and arts, physical fitness, computer technology, and creative writing as criti-

cal components of service delivery systems to enhance participants' self-confidence,

self-esteem, and competencies

" Immediate access to treatment

* More intensive provision of support services, such as mentoring, tutoring, adven-

ture-based programming, art therapy, and functional family therapy.

Juvenile and Family Drug Courts: An Overview, Prepared by the OJP Drug Court Clearing-

house and Technical Assistance Project, A Program of the Drug Courts Program Office, Office

of Justice Programs, U.S. Department of Justice (Dec. 2000).

23 See Tauber, supra note 18, at 15 ("As appropriate, the judge assumes the role of confessor,

task master, cheerleader, and mentor, in turn exhorting, threatening, encouraging and congratu-

lating the participant for his or her progress, or lack thereof.").

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fashion this describes what juvenile treatment court judges do routinelyin courtrooms throughout the nation.

FAMILY TREATMENT COURTS

Family treatment courts function with the same principles as crimi-nal and juvenile treatment courts. These specialized courts deal withselected abuse and neglect cases in which parental substance abuse is aprimary factor. Judges, attorneys, child protection caseworkers, andtreatment personnel work collaboratively toward the goal of providingsafe, nurturing, and permanent homes for children, while simultane-ously providing parents the necessary support and services to becomedrug and alcohol abstinent. Family treatment courts assist parents inregaining control of their lives and promote long-term stabilized recov-ery. They also enhance the possibility of family reunification within thefederal mandates of the Adoption and Safe Families Act (ASFA)24 andIndian Child Welfare Act (ICWA).25

Like permanency courts, family treatment courts expedite the per-manency process, reuniting children with their biological parents or,where that is not possible, placing them in permanent adoptive homes.One of the goals of family treatment courts is to assure that children donot languish in "foster care limbo," which, to a child, can seem an eter-nity. As in other problem-solving courts, instead of being a remote ad-judicator removed from the fray, the judge takes a hands-on approach.The judge asks what needs to be done to get parents off drugs, and thenassumes a leadership role in seeing that everyone involved works cooper-atively-from Medicaid eligibility specialists and foster care agencies, todrug treatment providers and child welfare caseworkers.

Many observers and judges attribute the success of drug courts inlarge part to the investment of presiding judges and the nature of theirrelationships with respondents.26 The extent of a treatment courtjudge's involvement with respondents is unprecedented. Not only doesthe judge review progress numerous times over the course of treatment,but he or she engages the respondent directly on an interpersonal level,cajoling, praising, and chastising as needed, eventually becoming, when

24 Adoption and Safe Families Act, Pub. L. No. 105-89, 111 Stat. 2115 (1997) (codified in

scattered sections of 42 U.S.C.).25 Indian Child Welfare Act, 25 U.S.C. § 1901-1963 (1978).26 Sally L. Satel, Observational Study of Courtroom Dynamics in Selected Drug Courts, 1 NAT'L

DRUG CT. INST. REV. 56, 62-63 (1998).

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the dynamic is working correctly, an authority figure who the respon-dent seeks to please. This happens particularly with adolescents in juve-nile drug treatment courts who succeed in changing harmful attitudesand behaviors. The development of positive relationships with caringpeople is a good predictor of success in recovery.

According to psychiatrist and drug court consultant Michael Smithof New York's Lincoln Hospital, "the drug court model creates a veryhealthy and transparent system of authority. The actions of the judgedepend directly on the patient's own performance; it's all observable: theurine screens, the attendance, how the patient relates to staff and otherpatients. '2 7 Judge Jeffrey Tauber has explained: "[t]he symbolic impactof the black robe can't be underestimated; it shows respondents that thesystem takes their conduct seriously."28 According to a survey con-ducted by the Drug Court Clearinghouse at American University,"eighty percent of participants indicated they would not have remained[in treatment] if they did not appear before a judge as part of the pro-cess. '

29 Other studies have shown that patients coerced into treatmentdo as well, or better, than those who volunteer for it.3 °

Judge Jeffery S. Tauber, of California, argues that the judiciary can,and should, take a leading role in combating drug abuse:

Judges are in a unique position to provide effective leadership inpromoting coordinated drug control and treatment efforts, bothwithin the criminal justice system and in their local communities.Judges have the political influence, the ties to government agencies,the moral authority, and perceived fairness and impartiality, and theexpertise and focus necessary to bring leadership to coordinated anti-drug efforts.

Traditionally, judges have played the passive role of objective, im-partial referee, only reluctantly stepping beyond the boundaries oftheir own courtroom. However, when the fair and effective adminis-tration of justice is threatened (as in this case by an exploding drug

27 Personal Communication with Michael Smith, MD (Sept. 1997).28 Satel, supra note 26, at 60. Judge Tauber was the past President of the National Associa-

tion of Drug Court Professionals. Id.29 Id. at 6; see also Caroline S. Cooper, 1997 Drug Court Survey Report: Executive Summary,

OJP Drug Court Clearinghouse and Technical Assistance Project at http://spa.ward.american.edu/justice/publications/execl.htm (Oct. 1997).

30 See Drug Court Clearinghouse and Technical Assistance Project, Summary Assessment of

the Drug Court Experience (May, 1997), at http://spa.ward.american.edu/justice/publications/

justl.htm (May 1997).

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406 CARDOZO PUB. LAW, POLICY & ETHICS J V

problem), judges have the responsibility to come forward and becomeleaders and active participants in the organization, design, and imple-mentation of coordinated criminal justice and community-wide drugcontrol efforts. 31

PERMANENCY COURTS

Another area in which the role of the family court judge haschanged dramatically is in permanency planning for children in fostercare. Federal and state laws mandate immediate attention to the needsfor safety and well-being of every abused and neglected child. 32 Federalstatutes such as the 1980 Adoption Assistance and Child Welfare Act 33

and the 1997 Adoption and Safe Families Act (ASFA)34 set benchmarksfor measuring how well states are responding to the problem of childabuse and neglect. The primary goal of ASFA is to prevent childrenfrom lingering in foster care without a permanent home. ASFA accom-plishes this goal by requiring expeditious adjudication of neglectful and/or abusive parents and requiring timely efforts toward reunification. 35 If

reunification efforts prove unsuccessful, states must promptly seek ter-mination of parental rights,:to free the child for adoption. 36 Loss ofeligibility for federal foster care funds results from failure to meet thebenchmarks of timeliness.

When New York's Office of Children and Family Services was au-dited by the United States Department of Health and Human Servicesin 2001, it was not in substantial conformity with five of the sevenoutcome areas, and three of the seven systemic factors set out in ASFA.37

Deficiencies were particularly significant in the area of permanency,with only 54.2 percent of New York foster children achieving reunifica-

31 Tauber, supra note 18, at 17-18.

32 See Kurtis A. Kemper, Annotation, Construction and Application By State Courts of the

Federal Adoption and Safe Families Act and Its Implementation by State Statutes, 2003 A.L.R. 5th

3.33 Adoption Assistance and Child Welfare Act of 1980 (Federal Adoption Assistance and

Child Welfare Act), Pub. L. No. 96-272, 94 Stat. 500 (1980) (codified in scattered sections of

42 U.S.C.).34 Adoption and Safe Families Act of 1997, Pub. L. 105-89, 111 Stat. 2115 (1997) (codified

in scattered sections of 42 U.S.C.).35 42 U.S.C. § 671 (1999).36 Id.

37 U.S. Department of Health and Human Services, Final Report of the Child and FamilyServices Review of New York State, at http://www.nyscc.org/CFSRREPORT.htm (Jan. 2002).

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tion as compared to the national standard of 76.2 percent.38 Only 2.95percent of foster children exiting care to a finalized adoption in NewYork State met the national standards for "length of time to achieveadoption," as opposed to the national standard of 32 percent. 39

New York is not the only state that struggles to comply withASFA's timeline requirements. One way the judiciary has responded toimprove permanency outcomes for children in foster care is the develop-ment of permanency courts. As with other problem-solving courts,close judicial monitoring of cases is the cornerstone of their process,resulting in quicker resolution of cases, less time in foster care, and moreadoptions. The first New York permanency court opened in New YorkCity in 1999 under the direction of Judge Sara P. Schechter." TheExpedited Permanency Part of the New York City Model Court hasbecome a laboratory for developing "best practices" which have beenreplicated in family courts throughout the State.41 The Model Courtsprovide an opportunity for practices, collaborations, innovations, andother system changes to be tested and refined as part of ongoing systemchange efforts. Best practices include extensive use of conferencing bothat the outset of a case and throughout its life to ensure compliance withtime frames and service plans, together with additional court staff tomonitor compliance with court orders.42

In areas where permanency courts exist, the outcomes for childrenin foster care have improved considerably. Since the Erie County Fam-ily Court Improvement Project began in 1998, through Fall 2002, thenumber of children in foster care in Erie County has decreased 44 per-cent to 1,400, and more than 900 children have been adopted into per-manent families.43 The hallmarks of this project are judicial leadershipand close collaboration between the Court, the Department of SocialServices, foster care agencies, service providers, and the legalcommunity.

38 Id.

39 Id.40 See Sara P. Schechter, Owning AESA, 53 Juv. & FAM. CT. J. 1 (2002).

41 See Sara P. Schechter, Family Court Case Conferencing and Post-Dispositional Tracking:Tools For Achieving Justice for Parents in the Child Welfare System, 70 FORDHAM L. REv. 427(2001).

42 See Mary Mentaberry, Model Courts Serve Abused and Neglected Children, Office of Juve-

nile Justice & Delinquency Prevention, Fact Sheet # 90 Uan. 1999).43 Judge Sharon S. Townsend & Karen Carrol, System Change through Collaboration . . .

Eight Stepsfor Gettingfrom There to Here, 53 Juv. & FAM. CT. J. 19, 21 (2002).

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408 CARDOZO PUB. LAW, POLICY & ETHICS I [

The National Council of Juvenile and Family Court Judges hasbeen a national leader in the implementation of federal and state man-dates regarding abused and neglected children. As the oldest nationaljudicial membership organization, the National Council provides train-ing and written materials for thousands of judges in all fifty states."

I am presiding judge of the Monroe County's permanency court,which opened in May of 2004. Among our community partners are theCenter for Dispute Settlement, which has developed the MonroeCounty Child Permanency Mediation Program, offering alternative dis-pute resolution for selected issues, and the Court Appointed Special Ad-vocates (CASA), which assists the court in accomplishing variousmonitoring objectives. We hope to achieve better outcomes for ourchildren and families than those achieved through our traditional per-manency court process.

THE NEW YORK STATE PERMANENT COMMISSION ON JUSTICE

FOR CHILDREN

The New York State Permanent Commission on Justice for Chil-dren, chaired by Chief Judge Judith S. Kaye, was established in 1991 to

44 In a Technical Assistance Brief, published by the National Council of Juvenile and FamilyCourt Judges, and entitled, "Key Principles for Permanency Planning for Children," an emphasisis placed on the need for strong judicial leadership and oversight in child welfare cases:

4. JUDICIAL LEADERSHIP

Judges must ensure that the courts they administer provide efficient and timely justicefor children and their families.Judges must ensure that their juvenile and family court system has the capacity tocollect, analyze, and report aggregate data relating to judicial performance, includingthe timely processing of cases to ensure the achievement of permanency for childrenwho are under court jurisdiction.Judges must convene and engage the community in meaningful partnerships to pro-mote the safety and permanency of children.

6. JUDICIAL OVERSIGHT OF CHILDREN AND FAMILIES

Judges must provide oversight of children and families under court jurisdiction toensure that these children are safe and have a permanent home in a timely fashion andthat the parents/caretakers receive due process of law.

Judges must exercise their authority to order state/local agencies to provide reasonableand necessary services to children and families under court jurisdiction to ensure safe,permanent outcomes for children and a fair opportunity for parents to become com-

petent and safe caretakers.National Council of Juvenile and Family Court Judges, Technical Assistance Brief, Key Principlesfor Permanency Planning for Children, available at http://jec.unm.edu/resources/benchbooks/

childlaw/miscellany/ch3_principles.htm (Oct. 1999).

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address the problems of children whose lives are affected by New YorkState courts. Its membership includes not only judges and advocates,but also physicians, social workers, legislators, and state and local offi-cials. During the past thirteen years, the Commission has undertakenseveral reform initiatives that have enhanced the lives of New York chil-dren, including improving access to early intervention services for in-fants and toddlers with disabilities and establishing the nation's firststatewide system of children's centers in courthouses.4 5

In 1994, the New York State Court of Appeals designated theCommission to implement the State Court Improvement Project, a fed-erally funded effort to improve outcomes in child welfare proceedings.4 6

The permanency projects in New York and Erie counties have been des-ignated National Model Courts by the National Council of Juvenile andFamily Court Judges.47 As part of this initiative, the Commission foundthat while many foster children had serious health needs that couldcompromise their healthy development and efforts to secure a perma-nent home, such issues were routinely neglected during permanencyproceedings.48

In attempting to remedy the situation, the Commission developeda booklet that set forth the questions that need to be asked to insure thatall children in foster care receive the medical, dental, and mental healthservices to which they are entitled.4 9 The Commission also has broughtearly intervention professionals into the courts to help judges and advo-cates understand child development and translate information about thedevelopmental needs of children in foster care in ways that aid in deci-sion-making about placement, visitation, and permanency.

As noted above, "the Permanent Judicial Commission on Justicefor Children spearheaded the development of a statewide system of chil-dren's centers" to provide a "safe haven" for children who accompanytheir parents to court.5" Today there are more than thirty centers in

45 New York Permanent Judicial Commission on Justice for Children, Ensuring the HealthyDevelopment of Foster Children: A Guide for Judges, Advocates and Child Welfare Professionals,available at. http://www.courts.state.ny.us/ip/justiceforchildren/PDF/ensuringhealthydevelop-ment.PDF (last visited Feb. 11, 2005).

46 New York State Permanent Judicial Commission on Justice for Children, Twelve-Year

Report 1991-2003, Accomplishments 11-12.47 Id.48 Id. at 15.49 New York State Permanent Judicial Commission on Justice for Children, supra note 45.50 Justice for Children, Children's Centers, at http://www.courts.state.ny.us/ip/justiceforchil-

dren/childrenscenters.shtml (n.d,) [hereinafter Children's Centers].

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New York State, serving more that 51,000 children annually.5' Thesechildren centers provide two-pronged service: (1) quality drop-in childcare services while their caregivers attend to court business; and (2) asite-possibly the only place until a child enters school-where familiescan learn about and gain access to vital services such as Early Interven-tion, Head Start, WIC, and Food Stamps. 52 "The Children Center Lit-eracy Project creates a literacy rich environment in the Centers. Theprogram features the gift of a new age-appropriate book for every childwho visits the Center and a literacy-enhanced curriculum that promotesactivities focused on reading readiness. 53

The Judicial Commission also provides statewide training pro-grams for Family Court personnel and related agencies. The Commis-sion and the Office of Children and Families Services sponsored a two-day conference in Albany in the fall of 2003 on achieving improvedpermanency outcomes, entitled "Sharing Success." Family Court judgesfrom across the state attended, together with representatives from localDepartments of Social Services, and lawyers who work in the courts. Iattended this conference with a representative group from my county,and out of our experience came the impetus for creating MonroeCounty's "best practices", permanency court. Another of the Commis-sion's projects is "Babies Can't Wait," a specialized court-based strategyto maximize the healthy development and permanency prospects for in-fants in foster care.54

New York State, under the strong leadership of Chief Judge Kaye,has been in the vanguard of the creation of problem-solving courts. In2000, the Conference of Chief Justices and the Conference of StateCourt Administrators passed a joint resolution endorsing the concept ofproblem-solving courts. 55 The resolution encouraged the broad integra-tion of the principles and methods used in those courts into the admin-

51 Id.; Children's Centers Program, Permanent Judicial Commission on Justice for Children,

Promoting Literacy: Lessons from New York State's Court-Based Literacy Project, available at http://www.courts.state.ny.us/ip/justiceforchildren/PDF/projectliteracy.PDF (n.d.) [hereinafter Pro-moting Literacy].

52 Children ' Centers, supra note -50; Promoting Literacy, supra note 51.

53 Promoting Literacy, supra note 51. One of New York's first Children's Centers was estab-lished in Rochester in 1993, while I was serving as supervising judge of Monroe County FamilyCourt.

54 New York State Permanent Judicial Commission on Justice for Children, supra note 46.55 Chief Judge Judith S. Kaye is the past President of the Conference of Chief Justices (2003-

04). See State of NY Court of Appeals at http://www.courts.state.ny.us/ctapps/jkaye.htm (lastvisited Apr. 10, 2005).

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istration of justice in order "to improve court processes and outcomeswhile preserving the rule of law, enhancing judicial effectiveness, andmeeting the needs and expectations of litigants, victims and commu-nity."' 56 The American Bar Association adopted a similar resolution thefollowing year. 57

CONCLUSION

Addressing the New York State Bar Association in 1899, OliverWendell Holmes quipped, "Judges commonly are elderly men, and aremore likely to hate at sight any analysis to which they are not accus-tomed, and which disturbs repose of mind, than to fall in love withnovelties."58 Holmes' observation regarding judges is no more accuratethan Lenin's observation59 when it comes to describing the Americanjudiciary in the twenty-first century. In New York, as in other states,judges are willingly assuming nontraditional roles and approaches to im-prove the quality of justice dispensed in our courtrooms.

One of my favorite scriptural passages is: "What does the Lordrequire of you? To act justly and to love mercy and to walk humblywith your God. '60 We judges, as public servants entrusted with soci-ety's justice-rendering function, have the privilege to live out this bibli-cal injunction in a special way. The nontraditional, hands-on approachof problem-solving courts provides us with an excellent means to thatend.

56 In Support of Problem-Solving Courts, CCJ Res. 22, COSCA Res. IV, available at http://

cosca.ncsc.dni.us/Resolutions/CourtAdmin/resolutionproblemsolvingcts.html (Aug, 3, 2003).57 126 A.B.A. ANN. REP. 879 (2001).58 Oliver Wendell Holmes, Law in Science and Science in Law, 12 HAtv. L. REv. 443, 455

(1899).59 See supra text accompanying note 3.60 Micah 6:8.

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