Perspectives from Family Court: Getting the Benefit of the Doubt or Unfit to Parent?

July 3, 2013

A few weeks ago, a good friend’s two-year-old daughter accidentally ingested about eight Benadryl tablets. The friend, Linda, kept the pills in her bag for her older son, who suffered severe allergies. Her daughter, an elfin toddler—adorable, mischievous and less than thirty pounds—had snuck into her mother’s purse, discovered the candy-like tablets inside a zippered pouch, and popped the pills out of the “child-proof” blister packs, one at a time. The family was home when the incident happened: Linda in another room getting dinner ready; her older son playing upstairs. Linda had left her two-year-old alone in the living room for just a few minutes. When she returned, empty blister packets were strewn across the floor.

The toddler explained that she had “taken her medicine,” just the way she had seen her older brother swallow the pink pills when he had allergy attacks. Panicked, Linda called a poison control hotline and spoke with an expert. He assured Linda that the little girl would be okay. The toddler would probably be extremely hyperactive or drowsy, both of which were expected and acceptable reactions. He told Linda that she should monitor her daughter for unusual or extreme reactions, but otherwise just to wait it out. That night, the little girl went to sleep and awoke the next morning, healthy and blissfully unaware of the terror she had caused her mother.

Linda swore to herself she would keep her purse out of her daughter’s reach and find some kind of locked pouch to carry her son’s emergency allergy medication. However within a week, before Linda had time to find a childproof solution, the little girl had managed to find the pills again, ingesting another handful. Again, Linda monitored her for unusual reactions and waited it out. Her daughter was ultimately okay, but Linda was shaken. Nothing more came of the scary episode.

For me, as an attorney who practiced in family court, Linda’s story was a stark reminder of the vast gulf that exists in the child welfare system between parents that enjoy the benefit of the doubt and parents that are presumed unfit to care for their own children. Whereas the accident in Linda’s home was an unhappy slip-up, accidents in the homes of low-income and minority families can open the door to lengthy and traumatic court intervention.

I spent a year working in the Bronx, representing parents in child neglect and abuse proceedings. I defended parents’ rights to keep their children and to make fundamental decisions about their children’s care without state interference. As a court-appointed attorney, my clients were parents who could not afford to retain their own lawyers. They were often individuals who received some form of government assistance, struggling to get by in one of the poorest urban communities in the country. In the twelve months I picked up cases, I had only one white client. The rest of my clients were African-American and Latino parents, a fact consistent with the national data that shows dramatic overrepresentation of minorities in the child welfare system. This is true even though, as a general matter, child maltreatment happens at similar rates across socioeconomic and racial or ethnic groups.

When I told friends and family about my work representing parents accused of neglect, their first reaction was almost always the same: “How can you represent those people?” Yet for me and for the attorneys I worked with, the work was fundamentally pro-family, helping parents keep the private realm of family intact. I was an advocate in a system that disproportionately tore at the fabric of certain families, often condemning behaviors or conduct that in a different community would be treated with empathy or, at worst, a judgmental shake of the head.

Linda’s story made me wonder. Linda is white. She and her family live in an upper middle class community. The only government worker that Linda encounters on a regular basis is her postman. What if she lived in a community where she had to speak with government caseworkers – mandated reporters of suspected child abuse under most state laws – on a regular basis?  What if she had mentioned the Benadryl episode off-hand at a welfare appointment or to a nurse at a walk-in clinic, seeking advice on how best to childproof her son’s medication?  Or what if she lived in a housing project and a social worker or neighbor overheard her tell a friend about the episode?  What if Linda had been a different color?

I know that Linda is a good mom. But I also know that under different circumstances she wouldn’t have been given the benefit of the doubt. She could have been one of my clients, fighting to convince a judge that the Benadryl incident was merely accident, an aberration, and that her child was not a victim of medical neglect. We would have had to demonstrate in a court of law that Linda’s toddler was not “in imminent danger of becoming impaired as a result of [Linda’s] failure . . . to exercise a minimum degree of care,” in the parlance of the New York Family Court Act.

In the course of my time working in family court, there’s no question that some of the cases I saw were worse than this scenario. Many more, however, were similar to Linda’s experience, only exacerbated by the conditions of poverty and violence endemic to the South Bronx.

The answer, then, to how I could represent “those people,” was simply that “those people” could have been my friend, my neighbor, my mother or my sister. By the sheer accident of which community my clients were born into, and the unbelievable hardship many faced day-to-day, they had to fight harder to provide for their own children, and fight tougher to protect their constitutional right to raise those children, themselves. Their stories are worth hearing. And it’s worth examining how quickly we judge and condemn the parenting choices of families caught in a system that targets some more than others.

This post is the first in a series that Marta Castaing will be writing for Life of the Law on family court perspectives. She is an attorney and writer with degrees from Yale College and the University of Michigan Law School. She spent a year working in the Family Defense Practice at the Bronx Defenders before practicing white collar defense at a business law firm.  he lives in Brooklyn, where she likes to go for walks along the often stinky, but tragically beautiful Gowanus Canal.