ALBANY — When New York’s Chief Judge Janet DiFiore gave her State of the Judiciary speech in February, she made a surprising announcement: For the first time, her Office of Court Administration would review the circumstances leading to child deaths within the state’s Family Court system.
The reviews would not be a “finger-pointing exercise,” DiFiore said on Feb. 26, but rather “a responsible call to action,” led by Deputy Chief Administrative Judge Edwina Mendelson, a former administrative judge in New York City’s Family Court.
But the task force, announced just weeks after the deaths of 6-year-old Davonte Paul in Troy and 8-year-old Thomas Valva on Long Island made headlines, has made no apparent progress after more than three months.
Its exact mission remains uncertain. In an interview, Mendelson acknowledged some of the open questions: It still isn’t clear which cases would be reviewed; if judges that made key rulings would be interviewed; or if reports critiquing court officials’ actions would be created or made public.
“We were working on that internally and thinking about it,” Mendelson said. “But nothing has happened officially.”
The review team is supposed to consist of judges, lawyers and other experts — but so far, no one besides Mendelson has been appointed. Amid the COVID-19 pandemic, the Office of Court Administration has been focused on responding to that crisis. But the fatality reviews remain “highly important to us,” Mendelson said.
Read the Times Union’s full Family Court investigation:
There are potential issues to address. As the Times Union detailed in this series of articles, in at least five instances since 2014, a parent has filed a petition warning a Family Court judge of impending danger to a child from the other parent. In each instance, the judge delayed action, and the child was killed in the care of the allegedly dangerous parent.
Key officials assigned to delve into Family Court cases — attorneys representing children and mental health workers known as forensic evaluators — lack enforceable standards for how they operate, and have been criticized in the wake of tragedies. Child Protective Services agencies, the most crucial cog in determining whether abuse allegations are valid, ignored basic protocols in dismissing abuse complaints ahead of the deaths of Paul and Valva.
In recent years, grieving parents of children who have died in the Family Court system say they’ve had trouble getting their reform ideas before OCA leadership. Academics and attorneys representing domestic violence victims have felt similarly frustrated.
“These tragedies keep happening, and the excuse keeps being that these are isolated incidents,” said Barry Goldstein, an author and attorney who represented domestic violence victims in New York for 30 years.
The Office of Court Administration, led by DiFiore, doesn’t “like it that they’re missing abuse, that they’re getting it wrong,” Goldstein said. “But there’s some very substantial research that they’re ignoring.”
Several Democratic members of the state Assembly and Senate have been working on legislation to address major issues in Family Court that does incorporate academic research. But COVID-19 has also upended the legislative session in Albany; it’s unclear whether the efforts will gain further traction in 2020.
‘One is too many’
After Jacqueline Franchetti’s 2-year-old daughter Kyra was murdered by her ex-boyfriend in 2016, she tried to speak with officials that oversee the Family Court system about problems that emerged in her case in Nassau County Family Court.
DiFiore wouldn’t return calls or emails, Franchetti said. Lawrence Marks, the state’s chief administrative judge, wouldn’t talk to her either. Franchetti finally got OCA’s deputy counsel Janet Fink on the phone. Fink largely dismissed her concerns without knowing many of the details, Franchetti said, telling her she had a “bad case.”
Asked if such deaths were isolated “bad cases,” Mendelson told the Times Union that they were rare.
“Any loss of life, particularly the loss of life of a child, is so tragic, so disturbing, so horrific that we as a system want to react — because one is too many,” she said. “I will also tell you from my many years as a Family Court judge, and a leader of the Family Court, it is rare to have a fatality for a child.”
Julianne Steinbrecher of Syracuse, whose ex-boyfriend was convicted of manslaughter in the 2014 death of her daughter Gabriella, also tried to meet with DiFiore. She wanted to relay concerns about a two-month delay in Onondaga County Family Court responding to her warnings of the father’s recklessness, a delay that she believes contributed to her daughter’s death. She wrote a letter to New York’s chief judge in 2017.
Instead of getting a meeting with DiFiore as requested, Steinbrecher got a letter back from Barbara Mule, an OCA staffer, indicating that the problem was already being solved.
“Please be assured that the court system takes very seriously the need for expeditious processing and calendaring of matters, particularly in the Family Court,” Mule wrote. “Despite serious budget constraints, the Office of Court Administration has been affirmatively working with the courts statewide to reduce the time from filing to appearance. In Onondaga Family Court, the impact of these efforts are apparent, as the time for calendaring of return dates has significantly decreased.”
“This is not the type of response I was expecting,” Steinbrecher replied in a letter back to Mule. “Contrary to your statements, it is my belief that the Family Court Systems are far from operating at optimal levels.”
OCA declined to comment on DiFiore’s refusal to meet with grieving parents.
When DiFiore first announced the initiative in February, she said the child fatality review team would identify and correct gaps in the Family Court and child welfare systems. She promised to prevent future fatalities.
“Every time a child dies from maltreatment, the public’s faith in our courts is deeply shaken,” DiFiore said in her speech. “It is up to us to lead the way in ensuring that children are protected from preventable harm.”
While that effort hasn’t yet gotten off the ground, Mendelson said in an hour-long interview with the Times Union that DiFiore had already been trying to address frequent delays in Family Court.
Too many delays
Since Gov. Andrew M. Cuomo appointed her in 2015, DiFiore’s signature program, the “Excellence Initiative,” has been aimed at making New York’s court system more efficient. Family Courts are run by individual counties but overseen by the Office of Court Administration. Mendelson said that OCA leadership has been meeting with Family Court officials, including judges.
“They’ve been looking at their data, the number of court cases that they have pending,” Mendelson said. “Judges and court leaders in the Family Courts throughout the state have been looking at how to ensure that all court appearances in all Family Courts are meaningful.”
If a court appearance is adjourned, that can lead to a delay in a case for months. Mendelson said OCA is emphasizing having adjournments only for a “really good reason,” a standard that every court appearance “moves a case toward some level of finality.”
But she noted that Family Court appearances require many parties to be present: attorneys for the parents or other family members, sometimes multiple attorneys for children, and social service workers.
In a 2016 report issued by the Center for New York City Affairs, Christine Gottlieb, co-director of the Family Defense Clinic at the New York University Law School, argued that some delays are caused by the legitimate need for caution, and some by inefficiency.
“Every institutional player — all the law offices — ask for too many adjournments,” Golllieb stated in the report. “Like every lawyer, I occasionally have clients where it’s in their interest to push for delay, but judges should not give me an adjournment unless I have a damn good reason.”
Gottlieb suggested Family Court judges should be able to impose sanctions on those who show up for court unprepared. And if they’re not ready, she suggested, “You have to put $100 per day into a trust fund for the children. You could set it up so there’s an enforcement mechanism that’s good for kids.”
Asked about this idea, Mendelson said some judges have issued fines in rare instances where the “circumstances were appropriate” and “the lack of preparedness or failure to appear in court was significant enough.” To do so on a routine basis, however, would raise legal questions and would likely have to be reviewed by an appellate court, she said.
Mendelson said some Family Courts have created “trial parts” where judges hear cases from start to finish, rather than dealing with hundreds of different cases at different stages concurrently. Other courts are trying more mediation with substantial counseling to “get all of the parties in the same room and see about resolving cases.”
In Family Court cases where one parent is abusive, however, this approach can be ineffective: A person alleging abuse would be unlikely to strike a settlement giving parental rights to an abuser. In child fatality cases, physical abuse often presages deaths.
Despite dozens of child deaths in New York over recent decades, reviews of Family Court officials’ roles in the tragedies have never been performed before by OCA. But when DiFiore was district attorney in Westchester County, she created a child fatality review team.
“And so I think why this (task force) now happens is because Judge DiFiore has expertise and experience in this particular area, and she has decided to lead there,” Mendelson said.
While Franchetti felt rebuffed by the Office of Court Administration, she has gotten a very different reception from several state lawmakers.
A major priority has been the role of forensic evaluators. When a custody or visitation dispute between parents in Family Court reaches the point where a trial appears likely, the judge will often appoint a mental health professional to evaluate the parents. The resulting reports are highly influential in judges’ custody rulings.
One major bill has already taken a strange turn.
At a state Assembly Judiciary Committee hearing last October focusing on child safety in Family Court, the first witness to testify was Dr. Robin Lynch, a New York City psychologist in private practice. She is also chair of the child custody evaluation committee for the New York State Psychological Association, a trade group that represents the interests of 2,000 psychologists in the state.
Lynch offered a damning portrait of forensic evaluations in New York, arguing evaluations weren’t being performed in systematic ways and that there wasn’t enough oversight. She said most evaluators lacked proper training, and called for comprehensive, specialized training in domestic violence dynamics.
“It has been allowed to continue for far too long,” Lynch said. “There is nothing less than children’s lives at stake.”
In February, the Judiciary Committee chairman who had listened to Lynch testify, Bronx Assemblyman Jeffrey Dinowitz, introduced a bill aimed at those very issues.
It would require OCA to create a statewide, publicly available roster of forensic evaluators; rules for training programs including domestic violence dynamics; and rules establishing a complaint and removal process. The bill would also create an advisory panel to develop a code of ethics and standards of practice.
“There has to be a standard for evaluators, where they have to make a decision using A-B-C-D-E (criteria),” Dinowitz said in an interview. “It shouldn’t make a difference who the evaluator is, whether it’s a man or a woman.”
But in the months since the bill’s introduction, an influential firm has lobbied against the bill on behalf of the Psychological Association, despite Lynch’s testimony. Since February, Park Strategies, founded by former Republican U.S. Sen. Al D’Amato and paid $4,100 a month by the association, has been lobbying legislative officials including Dinowitz’s office.
Dinowitz told the Times Union that the leadership of the Psychological Association “appears to be largely concerned about the impact of additional training requirements for their members” while “Dr. Lynch and other children advocates appear to be more focused on how the forensic evaluator system is structured.”
Dinowitz is working to amend the bill to reach “broader consensus among stakeholders,” he said.
Lynch said that when she testified last fall, and in her public comments since, she has not been speaking on behalf of the Psychological Association.
The association’s executive director, Lori Sales Cutler, said the group had problems with several elements of Dinowitz’s bill, which she called “an overreach.”
“It would have negative consequences on those involved in sensitive custody cases,” she said. “It would limit our ability to provide accurate assessments, and we fear that it would hurt those who we are trying and ethically obligated to help.”
The bill’s training requirements would be established by OCA, but that office does not normally regulate professional activity, she said. Cutler called for a study of evaluators and their qualifications, rather than putting in standards without a “complete picture of who is conducting them and how they are conducted.”
The Psychological Association has long been a roadblock to another bill seeking to make forensic evaluations less secretive. Under current law, there are significant restrictions on litigants’ access to forensic evaluators’ reports in their own cases.
While the exact rules can vary between courts, often if parents are representing themselves, they can look at a copy of a report in the courthouse, but can’t keep one. If represented by an attorney, they in some instances can see a copy in their counsel’s office, or — as in Franchetti’s case — are only allowed to be briefed by an attorney on the contents.
Litigants “can’t even see the most crucial piece of evidence in the case,” said Dr. Mo Therese Hannah, a psychologist and professor at Siena College. “It’s a violation of due process rights.”
Four years after her daughter’s murder, Franchetti is still not allowed to discuss many aspects of the evaluation in her case.
Since 2013, Brooklyn Assemblywoman Helene Weinstein has introduced a bill to allow parents to have copies of evaluations, while also enabling judges to impose penalties if information were publicly leaked. It is supported by a number of groups representing domestic violence victims and passed the Assembly in 2019, but died in the state Senate.
Nancy Erickson, a proponent of the Weinstein bill and an attorney who’s long represented abused women in New York City, said the leadership of the Psychological Association was “trying to protect themselves” from scrutiny of flawed work.
For instance, Erickson said, if the results of the evaluations were more transparent, they could reveal evaluators that do “copy-and-paste jobs” that are largely the same for different custody cases.
Cutler said the Psychological Association opposed the bill because children may be discouraged from “telling the truth for fear of retribution from a parent” if litigants have greater access to the reports.
In a March memo also in opposition, the New York State Bar Association’s family law section cited concerns about litigants showing reports to children or others, stating the negative effects could be “irreparably harmful.” The Bar Association argues it’s questionable whether the “possible contempt finding” in the Weinstein bill will be a sufficient deterrent to leaking.
The Office of Court Administration’s matrimonial committee has put forward a compromise proposal, which would make willful dissemination of such information automatic contempt of court.
Queens Assemblyman Andrew Hevesi, also on the Judiciary Committee, has introduced a bill that instead of trying to reform evaluations would get rid of them altogether.
“From my perspective, they are the common thread in the worst tragedies that we’ve seen, including Jacqueline Franchetti’s,” Hevesi said. “They are a bad part of the process that should be excised — the way you would excise a tumor.”
Forensic evaluators can be inherently biased if paid by one parent and not the other, and are unaccountable for their decisions, Hevesi said.
If the bill passed, Hevesi could potentially see a role for a replacement official in Family Court, who would gather information about a case and give it to the judge. These people should not be making recommendations about which parent would get custody, as is currently common, Hevesi said.
Hevesi also plans to introduce a sweeping bill impacting Family Court, to be called “Kyra’s Law” for Franchetti’s murdered daughter.
It would keep the “best interest” of the child as the main factor in custody decisions, but explicitly make child safety the primary criteria under that rubric. It’s also expected to address a concept called “parental alienation,” which can significantly impact custody rulings.
According to domestic violence experts, a common tactic from abusers, who are primarily male, is to argue that their typically female former partner is “alienating” their child: psychologically manipulating the child to turn against the father, including through false abuse allegations.
This argument can outweigh abuse allegations when Family Court judges make custody rulings, according to recent academic research, and was a factor in the case of Thomas Valva.
At the Assembly Judiciary Committee hearing last October, Franchetti testified next to a large photo of her daughter holding her beloved Elmo doll. The mother’s moving testimony prompted Dinowitz and Hevesi to introduce their bills.
“I mean, your story, Kyra’s story makes me very sad. But it also makes me very angry,” Dinowitz told Franchetti at the hearing. “If there’s one thing I can’t stand, it’s when we’re dealing with people in government who may not be doing their jobs. But usually when we’re dealing with somebody who is not doing their job, it’s that they didn’t get a pothole fixed. But this …. I’m hoping that I can channel my anger to try to do something productive.”
He wasn’t the only one. Dozens showed up at the hearing in lower Manhattan, an informal network of people who say that while the Family Court system is meant to protect children, in their cases it’s done the opposite.
“We know the devastating consequences of doing nothing,” Franchetti testified. “On behalf of Kyra, on behalf of all the other children who have been murdered, whose voices have been silenced, their stories will be told. We’re not going away quietly.”
In the four years since her daughter died, Franchetti has maintained a list of parents that have been accused of killing a child amidst a legal dispute with the other parent. At the time of the hearing, it stood at 13.
Eight months later, the list has grown to 16.