Karen Houppert, Victimizing the Victims,
Village Voice, June 15, 1999, at 44.
CONSUELO FONTAINE CALLED FOR HELP AFTER SHE FLED
HER ALLEGEDLY ABUSIVE HUSBAND-SO THE CITY TRIED TO TAKE HER KIDS AWAY. HER
STORY IS INCREASINGLY COMMON.
Her nightmare should have been over; it was only
beginning.
For the next 10 months, Consuelo would find herself
in and out of family
court, trapped in an increasingly tangled web of
accusations and obfuscations.
On September 17, 1998, two months after she left
Shuber, the city's Administration
for Children's Services (ACS) charged her with
neglect for allowing her
children to witness domestic violence. `Respondents
constantly argue in
the presence of the children, with the children
intervening and the child.
. . states that she wished her parents would not
argue as much,' the city's
neglect petition states. `As a result of the foregoing,
subject children
are neglected.'
No matter that Consuelo had already extricated
herself from a bad situation.
The city continues to press the case, insisting
that exposing her kids
to domestic violence renders Consuelo an unfit
mother. ACS wants the children
taken away.
Consuelo's case is bizarre, but not unusual. The
legal term for her crime
is "failure to protect,' and across the city
mothers like Consuelo are
being punished for their husbands' abuse.
It is a new and unanticipated reaction to the decades-long
effort to publicize
the plight of battered mothers and of children
growing up in violent homes.
"Increasingly in New York City, abuse and
neglect proceedings are brought
against battered mothers whose children are removed
from them where the
only allegation is their children's exposure to
domestic violence," concludes
a new report by the Working Group of the Child
Welfare Subcommittee of
the New York City Inter-agency Task Force Against
Domestic Violence.
With little regard for the specifics of each situation,
this is happening
even in cases like Consuelo's, where the mother
has already left her abuser
and the kids are in no danger. Domestic violence
advocates across the city
report a flood of new failure-to-protect cases
crossing their desks and
assert that the city, in its prosecutorial zeal,
is punishing victims rather
than batterers, and traumatizing kids rather than
rescuing them. As a result,
battered women may be increasingly reluctant to
reach out for help. "Knowing
that they may be investigated by child protective
services," the report
says, "battered mothers are more likely to
remain in the abusive home,
isolated and afraid, so that they can remain with
their children.'
The task force sees the surge of "failure
to protect" cases as part of
a larger trend, under Mayor Giuliani, toward removing
kids from their homes
rather than providing services to prevent foster
care placement. (The number
of neglect cases flled by the city has shot up
from 6658 in 1995 to 10,395
last year-a 56 percent increase.) In domestic violence
cases".where no
one is disputing the mother's competence, that
policy can be especially
cruel for kids. Removing children be victimizes
them by increasing their
fear of abandonment, while they are struggling
with anger, grief, anxiety,
and feelings of being responsible for the abuse,"
the report concludes.
According to advocates, city caseworkers typically
demand that battered
women leave their abusers and threaten them with
the loss of their children
if they don't. Meanwhile, the city's domestic violence
shelters are saying,
sorry, no room. Consider the women's plight: In
1997-98, the Victim Services
department received 34,175 requests for shelter
from domestic violence.
That's an average of 38 requests a day-during a
period when there were
an average of only 10.6 shelter spaces available
per day. And the shift
from temporary shelter-for those women who are
lucky enough to land a spot-to
permanent housing is equally difficult. In New
York City, 31 percent of
abused women say they returned to their batterers
primarily because they
could not find permanent housing.
"The onus is always on the mother to move.
That often means making the
mother homeless, and making the children go through
that," says Susan Lob,
a domestic violence consultant. "It's a vicious
cycle. If the kids are
taken away from her, it's even harder to get into
a. shelter since women
with kids have priority. And yet she can't get
the kids back until she
has permanent shelter"
The city, on the other hand, says its record on
domestic violence is good.
ACS spokesperson Leonora Wiener points to an increase
in spending on domestic
violence prevention (from $200,000 last year to
$400,000 this year), noting
that the city has hired a fulltime domestic violence
specialist for one
of its 14 field offices and trained 400 of its
1200 ACS caseworkers about
teen relationship abuse. As for the charges made
in the task force's report,
Wiener would say only that ACS is studying the
document.
Meanwhile, though the city doesn't track the number
of failure-to-protect
cases it has prosecuted, anecdotal evidence-backed
by family court records
continues to pile up:
There is the woman whose ex-boyfriend came to her
house in January, fought
with her, and broke her arm. At the hospital, she
got a phone call informing
her that her two children, neither of whom had
seen the attack, had been
taken by ACS. The city claims the woman failed
to protect the kids from
witnessing this isolated act of domestic:violence.
It took her three weeks
to get provisional custody of her kids; six months
later, the neglect case
is still pending.
There is the woman who went to court 23 times over
the last four years,
filing orders of protection and pleading with officials
to keep her husband
out of the house and to force him to pay child
support. When he punched
one of the children, the city took all five kids
away from her-but never
arrested him. She didn't get the kids back for
almost a month, and the
neglect charges are still pending.
There is the immigrant woman whose enraged husband
slit her throat one
day in the mit of a; argument. The woman survived,
but u took her baby
away.ven though the infant slept through the entire
incident in a separate
room and the mother had no intention of ever returning
to See HOUPPERT
page 44 her husband (and even testified against
him before a grand jury),
the city used the failure-toprotect law to put
her baby in foster care.
"When I encountered her in court, her throat
still bandaged, she was sobbing
uncontrollably,- recalls Dorchen Leidholdt, director
of the Center for
Battered Women's Legal Services at Sanctuary for
Families. 'Having her
child removed was as traumatic to her as being
slashed by her abuser.'
Leidholdt listened as a translator interpreted
her client's anguished questions.
"She wanted to know why, if she's a vicitim,
is she being treated like
a criminal. She kept saying I don't understand
this American system.' "
Consuelo's case, too, defies all logic.
"They charge me with neglect because we engage
in disputes in front of
the kids?" she asks, incredulous. "And
anyhow, it wasn't like they [ACS]
say. There was no physical hitting. We're arguing
sometimes but then we
go into the other room, or I'd tell the kids to
go downstairs to my mother-in-law's."
Consuelo, an Ecuadoran immigrant who worked as
a financial analyst in her
country, struggles for a moment, searching for
the right words to describe
her frustration. "But it doesn't seem to matter
what really happened."
Consuelo's troubles with the city began shortly
after she left her husband.
She had been living in a domestic violence shelter
for almost a month when
she inadvertently initiated a disastrous chain
of events-by calling ACS
and asking for help.
On August 27, Consuelo learned that Shuber may
have exposed his penis to
her sevenyear-old daughter, Rosa (not her real
name; the names of the children
in this article have been changed). Consuelo says
she heard about the incident
while discussing a booklet on sexual abuse that
her 15-year-old daughter,
Patricia, had brought home from her Big Brother-Big
Sister program. Rosa
was coloring pictures in the booklet as the family
discussed the book's
content. A little bit later, Rosa penned the following
words in pink and
green Magic Marker: Shuber made me look at his
vagina.... we 3 [Rosa and
her two half sisters, Shuber's biological children]
wer playing nintendo.
Then he called me. I stoped the game. I put it
on pause. He told me to
look at it. I didn't want to look at it. I said
no. But he keeps on saying
look at it, look at it. I looked at it for 1 min.
I went back to play.
Worried that something more had happened, Consuelo
spoke to her counselor
at the domestic violence shelter, who helped her
call ACS's Emergency Unit.
Two days later an ACS investigator arrived to question
Rosa. Consuelo followed
up with a second call to ACS, asking that her daughter
be examined and
receive counseling. On September 1, Consuelo took
Rosaand the two younger
children-to their family doctor to make sure there
were no physical signs
of sexual abuse. The doctor found none.
(Shuber declined to speak to the Voice about these
charges, but he has
denied them all along.) Consuelo says she met with
two ACS caseworkers
on September 3 and showed them her Order of Protection
against Shuber.
Questioned, she explained that she'd left home
after arguments and verbal
abuse. Two weeks later, ACS slapped her with the
neglect charge.
After that, Consuelo's case seemed to snowball.
Charges were added and
language was hyped-in a way that domestic violence
advocates say is quite
typical for families who, having entered "the
system," find everything
they do under ACS scrutiny. Consuelo watched helplessly
as Shuber's "spankings"
became "beatings" in the neglect petition.
Then watched again, as ACS amended
the original petition and added a new charge against
Consuelo: This time,
even she was blamed for the beatings.
Consuelo says a conversation she had with a social
worker was twisted until
her avowal that she refused to spank any of the
kids and that she and Shuber
even argued about spanking became proof that "she
admits to being present
when Respondent Shuber Fontaine would beat the
child" and that she "failed
to protect the child from being beaten."
The most peculiar incident in the city's campaign
to nail Consuelo with
neglect took place in family court on March 16.
There, ACS attorney Yvonne
Humphrey concluded her questioning of the Fontaine
family's caseworker
by announcing that .she wised. to amend the neglect
petition for a third
time. Humphrey based her new charge on "the
caseworker's testimony here
today that the mother informed her that on the
occasion of these alleged
incidents [Shuber's exposing himself to Rosa],
she was . . actually out
of the house." It's not until the judge pointed
out just how screwy this
was-Is it neglectful for the mother to leave the
children in the care of
her husband? Is that the amendment?"-that
the ACS attorney backed down.
In this topsy-turvy case, visiting family court
is like stepping through
the looking glass. Up is down, good is bad, and
common sense has fled.
The city's motivation eludes almost everyone involved.
Even if Shuber exposed
himself to Rosa and even if the court determines
that this constitutes
sexual abuse, it has little bearing on the girl's
future; Rosa is not his
biological child and he has no visitation rights.
Chances are, she will
never see him again. Shuber told the Voice he's
not going to be seeking
custody of his two biological children, either.
Why the city would want to take the kids away from
Consuelo is even murkier.
Consuelo has no intention of rejoining Shuber;
even if she is guilty of
failing to protect the kids from witnessing domestic
violence, she has
corrected the situation. Even Rochelle Yankwitt,
the law guardian who represents
the interests of the children in court, opposes
the city in this case.
"Ms. Fontaine has been a good parent,"
Yankwitt insists. "She should have
custody." The therapist who interviewed Rosa
in the aftermath of the alleged
sexual exposure, Lisa Sanders of the Children's
Advocacy Center of Manhattan,
apparently agrees. It is recommended that a reassessment
be done regarding
the decision to name Mrs. Fontaine, the alleged
victim in a domestic violence
situation, a respondent on a neglect petition,"
Sanders's confidential
report concluded.
As the case stands now, the kids are "paroled"
to Consuelo, but "under
ACS supervision." That means ACS caseworker
Kysha Jones drops by from time
to time and questions the children, also making
them strip down so that
she can check for bruises or marks. Consuelo fears
for the future. "I didn't
want to make this, what my husband did, something
criminal," Consuelo says.
"I needed help. But don't take my kids."
Advocates for domestic violence victims, meanwhile,
are watching, horrified,
as their efforts to help women like Consuelo backfire
in the city's hands.
"There is an increased awareness of the impact
of domestic violence on
children," says Sanctuary for Families's Leidholdt.
"Advocates like us
have worked toward that for years, but when that
awareness meets an underfunded
and poorly run bureaucracy, the result is a disaster."
As the Voice went to press Monday night, the neglect
case against the Fontaines
was dismissed by a family court judge, who reprimanded
ACS for providing
insufficent evidence and using the word beating
in an 'inflammatory' way.
ACS attorney Yvonne Humphrey made a statement formally
protesting the decision.