Family Court: Hold that two-step

Do you remember a few days ago I reported on a “dizzying two-step in Family Court,” referring to wha
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Categories: Opinion

Do you remember a few days ago I reported on a “dizzying two-step in Family Court,” referring to what I said was a judge’s overrruling himself?

Well, we were back in court yesterday, meaning Schenectady County Family Court, and the judge in question, Mark Powers, said he had intended no such thing. When he issued an order for two parents, Tom and Heidi, to “show cause” why the visitation with their children which he had just authorized shouldn’t be suspended, he was not in fact suspending the visitation.

That’s how the Department of Social Services conveniently interpreted his order, and Tom and Heidi’s lawyers did not dispute the interpretation. Indeed a visit that had been scheduled for last Friday afternoon was canceled, via telephone conversation between a caseworker and the parents, informing them that the judge had reversed himself.

But yesterday Judge Powers said no, he just wanted to hear arguments in the matter, that’s all. He thought he had made himself clear. Which is interesting, because the way things work in court, if you’re not familiar with our judicial system, is that when a judge gives an order, one side or the other writes it up for him to sign. He doesn’t write it himself. That may seem odd, but that’s the way it is.

In this case, the order that the judge says the Department of Social Services misinterpreted, the department’s lawyer, Ursula Hall, actually wrote herself.

She wrote it not specifically saying that visits between parents and children were suspended and not specifically saying they should continue either, but saying it must be argued why they should not be suspended, and then, a little farther down, “and it is further ordered …,” as if the first thing was ordered also.

The judge signed it in that form, believing it did not change the status quo, and then the department promptly advised the parents, just a few hours before they were to see their children, that the judge had reversed himself and the visit was off, which was how it came to me. Cute, no?

If I could issue an order to show cause why the Schenectady County Department of Social Services should not be disbanded, I would do so, but alas, I am not vested with such authority.

In any event, the judge made clear that weekly visits between parents and children are to proceed and that last week’s wrongly canceled visit is to be made up at some point, even though it’s still possible that Tom and Heidi will lose their children permanently as the result of a hearing scheduled for next month.

The Department of Social Services reserved the right to appeal all of this to the Appellate Division in a last-ditch effort to keep parents and children apart, which is their stated goal, but — miracle of miracles — following a meeting at their headquarters, the department’s principal lawyer, Kevin Burke, advised me they would make no such appeal but would abide by Judge Powers’ order to allow visits.

Later in the day the parents were notified they could have their first visit at 3 p.m. today, at the visiting center on Erie Boulevard. Barring another glitch or misinterpretation, it will be the first time they have seen three of their four children in more than a year.

Keeping the children away from these parents is not without cost to Schenectady County. In fact the plight of one of the children, now 4 years old, is likely to cost $250,000, which is the amount of a settlement that has been negotiated for injuries the child suffered in foster care. A hearing is scheduled for Jan. 5 in state Supreme Court to ratify the settlement.

I earlier reported that the child, then a baby just a few months old, suffered brain injury and other injuries while in the care of foster parents Eric and Carmina Janis and that Eric pleaded guilty to felony reckless endangerment as a result, for which he drew a sentence of five years’ probation, and Carmina, a nurse, got fined $500 by the state Education Department and had her license put on probation, which was true.

What I didn’t know at the time was that Eric Janis was a cousin of Heidi, the child’s mother, and placing the baby in his home was actually a way to keep the children with family members as far as possible.

Maybe that mitigates to some extent the responsibility of the Department of Social Services for the abuse of that child. Yes, they took the child away from her parents, who had not abused her, and gave her to someone else who did, which is certainly grotesque, but the foster parents were not strangers, they were relatives and neighbors.

Of the $250,000 settlement for that poor child’s injuries, only $142,058 will go to her, in the form of a trust fund to which she will have access when she becomes an adult. The rest will be divided up among the lawyers who did the negotiating. The county’s insurance company will cover all but $5,000 of the hit, county attorney Chris Gardner earlier told me.

Also, I have learned that the youngest child in this case, born in September of last year, tested positive for cocaine at birth, which was the legal basis for removing her from her parents without further ado. I earlier said it was a case of “derivative neglect,” which is merely neglect by logical extension.

So this is a messy case which is by no means resolved yet, and all I can say is what Heidi’s lawyer, Bruce Trachtenburg, says: If the Department of Social Services put as much effort into helping this family as into breaking it up, the children would long since have returned home.

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