“It is
not what a lawyer tells me I may do, but what humanity, reason, and justice
tell me I ought to do.” Edmund Burke, 1775
Baby
Bobbijean was born in March 2003 at HighlandHospital. Within days,
the Monroe County Department of Health and Human Services filed a petition
classifying her as neglected. The newborn was taken from her mother, Stephanie
P., on an emergency basis and placed in foster care directly from the hospital.
Stephanie and Bobbijean’s
father, Rodney, were livingat the
time in the House of Mercy, a city shelter. Susan Burke, a DHHS caseworker who
had worked with the mother during much of the pregnancy, testified in Family
Court that she was concerned about the couple’s ability to raise the child.
Thus began the case that resulted in
Family Court Judge Marilyn O’Connor’s unusual, and controversial, court order:
that Stephanie is not to get pregnant again until she has regained custody of
any of her children who are in foster care. And that Rodney is not to get any
more women pregnant unless he has been given custody of any of his children who
are in foster care. The implication: that both must prove their ability to care
for their children before they have more.
The case, which has gotten headlines
in Rochester and around
the country, has stirred up controversy in the legal and human-services
community.Like the tentacles of an
octopus, the ruling stretches out in several directions. It pits procreation
and privacy rights against the needs of children — and the interests of
taxpayers. And some of O’Connor’s critics say it has ramifications that extend
well beyond Bobbijean and her parents.
This wasn’t
the first time Family Court had become involved in Stephanie’s life. Herthree older children all tested
positive for cocaine after they were born and were eventually placed in foster
care.
Her first two children, now ages 6
and 4, were taken from her custody in 2000, and their placement in foster care
was renewed last year. Those two children were fathered by another man, and the
pattern continued when Stephanie met Rodney. Stephanie gave birth to a boy who
was placed in foster care in 2002, before he was a year old.
The couple was frequently homeless.
DHHS investigations found a history of cocaine use and neglectful behavior.
Social worker Susan Burke learned from officials at Highland and StrongMemorialHospital that
Stephanie had been referred to substance-abuse treatment centers numerous times
over the years. Initially, she made several attempts to treat her substance
abuse, but didn’t succeed. Eventually, she quit trying.
After Bobbijean
was placed in foster care last year, neither parent made any inquiries
regarding the child or indicated any readiness to take care of her, Burke
testified in court.
And Stephanie is reported to be
pregnant again, though it appears she was pregnant before the order was issued.
Whether this results in “consequences,” such as jail time for
violating a court order, depends on the timing of conception.
In her ruling,
O’Connor cited the need to protect the children. And she emphasized the
financial burden placed on taxpayers by negligent parents. The budget for
caring for foster children in MonroeCounty in 2001, the
last year the data was available, was $32 million, she said.
“It is painfully obvious,”
O’Connor wrote, “that a parent who has already lost to foster care all four of
her children born over a six-year period, with the last one having been taken
from her even before she could leave the hospital, should not get pregnant
again soon, if ever. She should not have yet another child which must be cared
for at public expense before she has proven herself able to care for other
children. The same is true for the father and his children. As to both parents,
providing care for the children includes providing financial support.”
“This is a practical, social,
economic, and moral reality,” wrote O’Connor. “In effect, Bobbijean
was born to a ‘no-parent family.’ She is for all practical purposes motherless
and fatherless. This is not acceptable.”
The constitutional right to privacy,
O’Connor writes, does not guarantee the right to have an unlimited number of
children. She cites the 1972 case Stanley
v. Illinois, which, she argues, implies that there is no right to conceive
a child, only to conceive and raise a child.
In the majority opinion of the court
in that case, Justice Byron White writes: “The rights to conceive and to
raise one’s children have been deemed ‘essential,’ ‘basic civil rights of man,’
and ‘rights far more precious… than property rights.'”
Critics have
been appalled at O’Connor’s decision.“There’s really no authority or case law cited” for the ruling, says
attorney Scott Forsyth, a spokesperson for the regional chapter of the American
Civil Liberties Union. “She just feels there’s a compelling state interest to
issue such an order.”
“It’s disconcerting,” Forsyth
says. “Is it unconstitutional? I don’t know.”
While ACLU members have met to
discuss what, if anything, the chapter might do, Forsyth says he doesn’t think
the case will be appealed “because
there is no attorney of record.” The ACLU’s legal services do not get
involved in a case unless invited, says Forsyth.
Among the questions the ruling has
raised: What are the limits of the state’s authority over individual rights to
have children?
“What concerns us most as an
organization is that she [O’Connor] seems to be saying that society’s interest
in not paying for any future children trumps the mother’s right to procreate,”
Forsyth says. “There are some real slippery-slope concerns with that.”
That line of thinking, he says,
could have broad implications. Forsyth cites large families with many children.
They may not be a burden to the state now, but they might be when the children
become senior citizens and need to draw from Social Security or Medicaid. If,
as O’Connor suggests, the state’s budgetary needs are more important than
individual rights to procreate, could the state limit the number of children
any family is allowed to have?
“Where do you stop with this
line of argument?” Forsyth says. “Those people with large families
have the potential to draw significant funds from the taxpayers.”
In addition, Forsyth raises the
question of accountability. A law is useless if there is no means to enforce
it, he says. In this case, O’Connor doesn’t stipulate the consequences of
violating the order, though she makes it clear that the court would not force
an abortion.
“What if the mother, in
defiance of the order, does get pregnant?” Forsyth says. “How do you enforce
such a provision?”
Another critic of the ruling,
someone familiar with Family Court issues who declined to be quoted, says any
serious attempt to save taxpayers’ money while enacting efficient and humane
child welfare policies must start with the adoption process.
The path from removal to adoption is
a costly, bureaucratic affair, says this critic, one that typically lasts more
than a year. The solution, the critic says, is to find ways to make the process
less daunting and more effective.
The critic also believes O’Connor’s
solution is unconstitutional. For example, some religious faiths oppose many
birth-control methods. Thus, O’Connor’s ruling, which sets a precedent, might be
used to justify ordering someone to violate his or her religious beliefs.
And what about neighborhoods that
are crime-ridden or over-populated and are therefore financially costly to
taxpayers? O’Connor’s ruling, suggests the critic, might be used to justify
birth quotas in those neighborhoods, similar to the Chinese government’s
policy.
Letting irresponsible parents have
children they can’t raise may not be acceptable to many people, suggests that
critic, but it may be the price we pay for living in a free society.
O’Connor’s
ruling has plenty of supporters.“Everybody
keeps saying, ‘It’s going to get overturned,’ but I’m not as sure,” says EftihiaBourtis, the law guardian
assigned to the four siblings in foster care. “I think Judge O’Connor gave a very
thorough, well thought-out decision.”
The ruling, says Bourtis,
is in the best interest of the children, and doesn’t violate individual rights.
“I read the Constitution the same way Judge O’Connor does,” she says. “You
have the right to have children and raise
them.”
And Bourtis
doesn’t give much merit to Forsyth’s objections about the ruling not being
enforceable.
“Judges make rulings all the
time that they can’t enforce,” Bourtis says.
“Judges tell people, ‘You can’t take drugs….'”
“There are consequences to breaking
a judge’s orders,” Bourtis says. “If she breaks Judge
O’Connor’s orders, then there are consequences.”
Bourtis
has been a law guardianfor four
years, but has handled criminal affairs for more than a decade. She has seen
first-hand, she says, the damage done by the cycle of abuse, in which neglected
children eventually become neglectful parents.
“During sentencing, people
would hate these people who are sentenced, who are drug addicts who don’t take
care of their kids,” Bourtis says. “I thought to
myself: What if I could meet them when they were little kids, when they were
the ones who were being neglected?”
Her experience is that the children
are as innocent and loving as others their age, says Bourtis.
“They’re just as beautiful as any other kids,” she says. “They have the
same hopes and dreams. It’s devastating to see that shattered when they’re so
young.”
All four of Stephanie’s children are
doing well, Bourtis says. Three are being raised
together in foster care by relatives, and the fourth is in foster care with a
separate family.
Bourtis
says she applauds O’Connor’s ruling because in her years of experience, she has
found that there is no effective way to intervene in the destructive cycle that
affects such children.
“What I found in Family Court
is that nothing happens to the parents,” says Bourtis.
“It’s the little kids who are hurt, who are victimized along the way,
while nothing happens to mom.”
“There are tons of drug
programs, of parenting classes,” Bourtis says.
“But if the parents don’t cooperate, there is nothing you can do.”
All too typically, says Bourtis, a parent makes a half-hearted vow to change, but
nothing happens. “Sometimes parents make a little bit of effort,” she
says, “and the kids get their hopes up and they get excited. ‘I’m going home,’
they think, ‘and everything’s going to be all right.'” Then the parents fall
back into the same destructive pattern and, once again, the children are
devastated.
Even if O’Connor’s ruling is
appealed and overturned, Bourtis says, it may do some
good.
“I hope that it gets people
thinking, and that if this isn’t the answer, maybe it’ll help us figure out
what is,” she sys.
Last week,
Stephanie was
the subject of yet another hearing.O’Connor
was trying to consolidate everything that has resulted from the numerous
hearings and petitions filed on behalf of each of Stephanie’s four children.
As the hearing opened, O’Connor
called to the bench all the law guardians and lawyers who had represented
Stephanie or her children. Half a dozen people walked to the front of the
courtroom. O’Connor assigned one lawyer from the Public Defender’s office to
represent Stephanie, and she assigned Bourtis as law
guardian for all four children.
Neither Stephanie nor Rodney showed
up at the hearing. And it was revealed that a bench warrant had been issued for
Stephanie’s arrest in connection with a parole violation. Stephanie also faces
prostitution charges from an April incident in which she allegedly offered to
service two undercover police officers for $10, according to news reports.
On May 25, Stephanie’s case will be
back in Family Court, to review an extension of the order that placed three of
her children in the care of a relative.
A
similar order
Judge
Marilyn O’Connor’s ruling isn’t the first time a judge has ordered a woman not
to become pregnant.
In Montana in 1998,
District Judge Dorothy McCarter ordered Dawn Marie Smith, a 29-year-old Helena woman, to not
get pregnant for a period of 10 years or risk jail time. Smith was required to
undergo pregnancy tests every two months.
Smith had earlier given birth to a
baby who tested positive for amphetamines. McCarter initially gave her a
three-year deferred sentence and required her to complete substance-abuse
treatments. Smith failed to do so, and McCarter issued the pregnancy ban.
“I don’t want another damaged
baby born because we didn’t do enough to supervise that woman. If she wants to
drug herself to death, fine. But we can’t have her taking drugs when she’s
pregnant,” McCarter said in her ruling.
The
question of birth control
In
her ruling, Judge Marilyn O’Connor did not impose any mandatory birth control,
and instead left the decision to the parents.
“It is important to note that
the court is not directing what steps the mother should take in order to not
get pregnant, or what steps the father should take in order to not get any
woman pregnant,” O’Connor ruled.
She also wrote, in the decision,
that the court would not order an abortion to rectify a pregnancy. The decision
does, however, offer a state-funded medical solution:
“The respondents may even
choose to be sterilized, the ultimate birth control method used by many adults
once they have had all the children they wish to have. Such a procedure would
be performed at no cost to the respondents,” the judge ruled.
This article appears in May 19-25, 2004.
