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Suits Would Burden Foster Parents, Court Rules


foster children, foster care

Jacob Harris was born in 2004, with traces of cocaine, opiates, marijuana and methadone in his body Dutchess County child welfare officials placed him with a foster mother, Diane Sherwood, while his birth mother, a drug addict, went into treatment.

When the mother, Taylor Harris, left treatment after six months and regained custody of Jacob, she brought a lawsuit against Sherwood and the Dutchess County Department of Social Services and the county's commissioner of social services for an injury the baby had sustained in Sherwood’s home. She alleged that her child was injured as a result of negligent care and supervision and failure to provide a safe environment.

Jacob's Climb -- and Fall

At 16 months, Jacob had been napping but, when he awoke, climbed out of his port-a-crib and onto a dresser of about the same height. He fell, fracturing a femur.

Sherwood had two of her own children in the household, and had cared for foster children for five to six years before Jacob joined her family. She kept Jacob's portable crib in her bedroom because of his special health problems including pneumonia for which he needed a nebulizer at night.

The Department of Social Services had inspected the portable crib and the living arrangements before the accident and did not voice any concerns. Jacob had never climbed out of his crib before, and the accident occurred suddenly and without warning. It could not have been foreseen or prevented by any reasonable degree of supervision, argued Sherwood’s lawyer, Daniel E. O'Neill of the firm of Boeggeman, George & Corde, P.C., in White Plains.

O'Neill said that his client's decision to place the baby in his crib for a midday nap and then go to the kitchen to make lunch for her other children, was a "typical judgment and decision made by every parent of an infant on a daily basis."

But the biological mother claimed that Sherwood failed to have "audio alarms and monitors, video monitors, warning devices, crib and playpen safety constraints" that would have somehow prevented Jacob from climbing out of his crib or immediately alerted someone if he did.

Parental Responsibilities

Birth parents and foster parents are equally responsible for children in their care since foster parents step into the shoes of biological parents when the birth parents cannot care for their children. This case represented the first time the question of whether foster parents can be sued for neglect supervision had arisen. Courts had already held that biological parents could not be, and a child would have no legal claim for damages against his or her parent for negligent supervision.

Was Sherwood’s conduct negligent? Could closer parental supervision have prevented the accident? Was Sherwood's conduct the cause of the accident? Was it foreseeable?

The argument was that she was not negligent, but even if she had been, the suit could not succeed. The child protective agencies had concluded that there was no negligence. The only question the court addressed was not whether she was negligent, but whether she could be sued.

The New York State Court of Appeals had previously held that if courts allowed lawsuits by parents, virtually all parents could be sued.

"We can conceive of few, if any, accidental injuries to children, which could not have been prevented, or substantially mitigated, by keener parental guidance, broader insight, closer protection and better example. Indeed, a child could probably avoid most physical harm were he under his parents' constant surveillance and instruction," the state's highest court had said.

Foster Parent as Parent

The relationship between Diane Sherwood and Jacob Harris was, with respect to the issues present in this particular case, identical to the unique relationship between a non-foster parent and child. Judgments made by a natural or foster parent are made for the same reason -- to promote the child’s physical, emotional and intellectual development.

In this case, McCabe v Dutchess County, Judge Plummer Lott, writing for the Supreme Court Appellate Division, Second Department, which hears appeals from Richmond (Staten Island), Kings (Brooklyn), Nassau, Queens, Suffolk, Westchester, Dutchess, Orange, Rockland and Putnam County, recently quoted the higher appellate opinion saying, "If within the wide scope of daily experiences common to the upbringing of a child, a parent may be subjected to a suit for damages for each failure to exercise care commensurate with the risk -- for each injury caused by inattention, unwise choice or even selfishness – a new and heavy burden will be added to parenthood."

Lott concluded in February, "We decline to impose such a heavy burden on foster parents, who agree to care for children who often come from difficult backgrounds and to whom they do not have any natural affinity. To impose such a burden would serve to discourage otherwise qualified and able foster parents from taking on this responsibility, notwithstanding the compensation they receive for so doing."

According to O'Neill, attorney for the foster mother, Taylor Harris has now permanently given up custody of her son. Social Services is prohibited from disclosing whether Jacob, now six, is in foster care again (he is not with Sherwood), in some other type of facility or possibly adopted.

Emily Jane Goodman is a New York State Supreme Court Justice

Fewer Prisoners, Fewer Prisons?


prisons, marcy correctional facility
The Marcy Correctional Facility in upstate Oneida County.

It seems simple. With prison populations declining and crime rates plummeting, Gov. David Paterson has proposed closing four upstate correctional facilities. It is estimated the move would save $7 million this year and $52 million in the next fiscal year. And in a year when the governor is proposing billion dollar cuts to education and health care, one might think closing three prisons in upstate New York would be an obvious move.

It's not. While some advocates charge that Paterson's planned closings don’t go far enough, a combination of political and economic concerns could save the three institutions on Paterson's list.

For example, the Moriah Shock Correctional Facility, which Paterson has proposed closing, is in the area where the Lake Champlain Bridge was destroyed, leaving the area economically crippled. Area resident say they cannot afford to lose the prison as well.

The Ogdensburg Correctional Facility, to take another instance, is in the district of Sen. Darrel Aubertine, an upstate Democrat who helps make up his party's uber-slim Senate majority. Voting for a budget that closed the prison in his district would be political poison for the freshman senator, and it is unlikely his conference would support anything that would put his seat in jeopardy.

Mount Lyon Correctional Facility is also on Paterson's list.

How Much They Cost

Despite the opposition to the closings, the Correctional Association of New York, an advocacy group, would shut more facilities and came to Albany on Tuesday with hundreds of members to press the legislature on the issue. The association estimates that New York state prisons have 6,300 empty beds that cost taxpayers some $140 million over a two-year period. Incarcerating a single individual costs the state $55,000 a year. Meanwhile, it is estimated that maintaining an empty bed costs around $22,000 annually.

Where They Count

The city of Ogdensburg has a population thought to be over 11,000 and their median household income is a little over $23,000 -- compared to the national median of around $40,000. The city has an 11 percent unemployment rate. The Ogdensburg Correctional Facility employs 287 workers and has an annual payroll of over $20 million.

Ogdensburg City School District Superintendent Timothy M. Vernsey told the Watertown Daily Times that the closure would have a trickle down effect. "As employees relocate for work, it negatively affects our enrollment numbers, which, in turn, affects the amount of state aid the district will receive," he told the Daily Times. "Eliminating a major employer in an already stressed community is devastating news."

The Essex County Board of Supervisors commissioned an economic report on the impact closing the Moriah Shock Correctional Facilitiy in Mineville would have. The facility provides 102 jobs but the report says those jobs make up about 1 percent of the county economy. According to the report, closing the prison would send the area's 10.3 unemployment rate up to 11.1 percent.

According to the board, the prison provides the area with about $8 million in revenue a year -- almost the same amount of money the state would save by closing the prison. The report also considered the benefit that the county received from having inmates perform community service. Prisoners did 94,136 hours of community service in 2009 -- a third of which was working for the Department of Conservation. The report states that inmates are often the frontline labor crews that clean up from natural disasters.

While these communities get jobs from the prison system, they also get political clout because the census counts inmates as living where they are jailed, not in the communities they hail from. Prisoners in New York State are mostly blacks and Hispanics who come from poor neighborhoods in the city. Most correctional facilities are far upstate in small, rural, white communities. The prisoners boost the population of some towns that have been losing people to other parts of the state and the country.

Democrats have introduced legislation that would count inmates where they come from when it comes to drawing legislative districts. This would almost certainly result in more members of the State Assembly and Senate from the city and fewer from upstate. Not surprisingly, Republicans from rural upstate prison communities steadfastly oppose it.

Most Democratic senators are loathe to talk about the chances of prison closures making it through this budget process, even though a good majority of them are in favor of the idea. "Shut 'em down! I'm sick of hearing Republicans complain they won't have anyone to cut their grass," said one Democratic senator whose district does not have a prison.

"Since entering the Senate, I have heard my downstate Democratic colleagues repeatedly call to close our upstate facilities, often citing what they believe to be an unfair counting of inmates in the federal census," said Sen. Betty Little, who represents a district where two prisons would be closed, in a statement released after Paterson's budget was revealed. "Closures not only directly impact those employed at correctional facilities, but there's also a ripple effect that is tough for rural and economically depressed communities in the North Country to absorb."

State Sen. Liz Krueger said the communities would need help if the prisons were to leave. "We need to right-size the prison system," she said. "Prisons rank very low on the scale of good economic development. But at the same time we need to help upstate with economic development."

Caitlin Dunklee of the Correctional Association says sending prisoners upstate from New York's downstate communities not only devastates those communities’ voting power but also destroys families. "Ogdensberg is literally right on the Canadian border," said Dunklee. "Free transportation is hard to find and making a 10-hour trip can be impossible" She says this leads to mothers losing custody of their children and other inmates losing the support of their families.

Counting Beds -- and Who's in Them

On Tuesday, lobbyists and advocates on different sides of the issue stood face to face, jam-packed into elevators, spilling out of meeting rooms, standing at ends of halls, lost and looking for room numbers. At the Legislative Office Building there was no question that budget season is in full swing. Advocates from the Correctional Association went into meetings with legislators and their staffs touting statistics that point a steady decline in prison population.

According to the state the inmate population has declined by almost 14,000 over the last 10 years -- a rate of nearly 30 percent. The number of inmates has declined by 4 percent this year alone and it is expected to decline by another 1,000 during the 2010-2011 fiscal year. But just last week legislators were being told a different story by lobbyists for the New York State Correctional Officers and Police Benevolent Association. There are approximately 59,000 inmates in New York's correctional system.

The correctional officers' union and lawmakers who represent districts that are home to the facilities say that prisons are actually at or above capacity. Donn Rowe, president of the union, testified at budget hearings earlier this year that cutting prisons will put communities in "serious jeopardy," due to security concerns. He said New York prisons are operating at 102 percent of capacity, with maximum security prisons at 122 percent. He also said prisoners are being forced to double up in cells that were originally designed to house one inmate. That situation, he said, could lead to more violence.

Eric Kriss, spokesperson for The Department of Correctional Services, says the correctional workers' tally doesn't take into account inmates who are in work release programs, in the hospital or in other disciplinary housing situations; instead they compare the number of prisoners to the number of beds that exist. "Even if by some miracle one day there wasn't anyone who needed disciplinary housing or to be in a treatment bed," said Kriss, "we would have the space for them because we would convert those beds to suit the general population."

The Department of Correctional Services has initiated a bed consolidation process to move staff and inmates out of sparsely populated prison wings. It estimates that move will save taxpayers around $8 million without costing any jobs. In fact, the three prison closures proposed in Paterson's budget would not necessarily lead to any layoffs, according Kriss. Staff at closed prisons will be offered jobs at other locations. The problem, he said, is that a lot of civilian (i.e. non-officer) staff may not want to move to a new area.

The Department of Correctional Services finds itself in the middle of the push to close prisons on hand and the drive to preserve every last one on the other. Department officials see themselves somewhere in the middle -- wanting to close some prisons that make fiscal sense to close but wanting to be able to respond should the inmate population increase.

Getting People Out of Prison

The Correction Association thinks an increase is unlikely in the near future. Instead, they think the state will see a drastic drop in the prison population thanks to the repeal of the Rockefeller drug laws. Department of Corrections officials say that with the repeal having gone into effect only a year or so ago, it is far too early to tell if a drastic reduction will materialize.

The Correctional Association is pushing for a number of measures that would leave more prison beds empty. For example it would like to see an increase in work release programs so that more inmates could transition back to a normal life. That, Kriss said, would require the legislature or governor to change a measure enacted during the Pataki administration that reduced the kinds of offenders who are eligible for work release. The Correctional Association is also pressing the legislature to reform parole so that minor violations would not land an offender in prison. The Association also wants to see the Parole Board increase the numbers of prisoners granted release on parole and awarded merit time based on behavior, so that prisoners who behave well get out more quickly.

Unsatisfied with the state's approach to shutting jails, the association plans on starting a board to review prison populations and determine which prisons should be closed. "We would like to start a community review board for prison closures. We need to see which prisons make more sense to close,"said Dunklee.

The Correctional Association also thinks money saved by closing prisons should go to creating opportunities in communities across the state. The group wants some money spent on community-based alternative sentencing programs, drug treatment and job training programs. As for the upstate communities, Dunklee said she thinks they need help. But she added, "Prisons should not be used as economic engines."

How to Fix New York's State Police


When the New York Times revealed that state troopers had been part of an alleged effort by Gov. David Paterson's office to convince a woman not to seek an order of protection against his aide David Johnson, not many around Albany were surprised that members of the executive services detail were involved.

In recent years, the detail has been implicated in a number of scandals involving the political influence of the governors it is charged with protecting.

In fact, a number of legislators pushing for a commission to look into how politics influences state troopers say they have been concerned with the issue for quite some time. Sen. Eric Adams and Assemblyman Hakeem Jeffries say they has planned to introduce the legislation to create the commission well before the Paterson incident hit the front page of the Times. The latest revelations, though, have given their efforts increased prominence and prompted other politicians and law enforcement officials to consider how New York runs its state police force.

Beyond Their Reach?

In the latest case, state troopers contacted the alleged domestic violence victim in a case where they had no jurisdiction. City police were involved in taking the domestic violence call, and state troopers traditionally do not have a role in policing New York City.

State Police Commissioner Harry Corrbitt's explanation of the situation to the New York Times didn't help ease anyone's concern. "We never pressured her, at least what I was advised; we never pressured her not to press charges," Corbitt, who Paterson appointed, said. "We just gave her options."

Corbitt even said the detail's actions were standard operating procedure. "It's typical if it involves anything that might involve a media event; it doesn't have to be a senior official to the governor," Corbitt told the Times. "It could be a politician or a high-profile physician, anything that might pique interest in the press, because it's a special circumstance." Experts and legislators say that that is far from standard operating procedure.

Deputy Secretary for Public Safety Denise O'Donnell, who was Corbitt's boss, was so upset about the situation that she resigned. O'Donnell said Corbitt had assured her previously that state police had no contact with the woman in the case, Sher-unna Booker. Corbitt, who resigned this week, said O'Donnell had misunderstood him.

Regardless of exactly who directed the state police to visit Booker -- one of the issues now under investigation by Attorney General Andrew Cuomo -- their action clearly did not represent standard operating procedure and raises troubling question about political influence on the agency.

This issue of politicians' influencing the leadership of the state police has reared its ugly head multiple times over the years, under three different governors, despite action by two of them to stop it. Former Gov. Eliot Spitzer put O'Donnell in charge of the state police in reaction to the Troopergate scandal. In that case, Spitzer's office instructed troopers to keep tabs on former Sen. Majority Leader Joe Bruno. Locked in a bitter political battle with Bruno, Spitzer hoped to discredit the senator for his use of state-paid travel to political events.

But O'Donnell's appointment didn't fix things. In 2008 when Paterson became governor, he asked Cuomo to look into whether there was a group of rogue, politically motivated troopers inside the capitol detail. His new superintendent, Corbitt, increased the size of the executive detail and tried to change the culture of the force with new training.

Cuomo's report found no criminal wrongdoing among troopers but did conclude that the state police leadership had been greatly influenced by politics. Cuomo's report said that former State Police Superintendent Wayne Bennett, who served under Gov. George Pataki, ordered troopers to hide a report detailing a domestic violence incident that took place at the home of former U.S. Rep. John Sweeney -- the man labeled Congressman Kick Ass by President George W. Bush for his role in the Brooks Brothers Riot during the Florida vote recount in 2000.

Start at the Top

The recent revelations by the New York Times make it clear that politics still have a powerful influence over state police actions. Members of Paterson's personal security detail visited the woman who was seeking an order of protection against his aide. Experts say the kind of troopers who get assigned to security details such as Paterson's earn their position through their political connections. Now Adams and Jefferies propose creation of a commission that will "investigate systematic misconduct, abuse of power and inappropriate political intervention with respect to the New York State Police."

The commission would be modeled after the Knapp Commission, which was used to investigate corruption in the city police in the 1970s following the revelations by officer Frank Serpico .

"The role of the New York State Police must be free from the influence of politics," said Adams, a former captain in the New York City Police Department. "The state police cannot serve, protect and defend the people if the integrity of their decisions is hamstrung by political concerns. The commission established by our legislation will guarantee the independence of the state police and ensure that its focus on law enforcement and crime prevention remains undiluted by any outside pressure or manipulation."

The State Police Benevolent Association, the union for the troopers, supports the idea. "The rank-and-file troopers have not been involved in the reported political manipulation," said PBA President Thomas H. Mungeer. "Any commission that would potentially review the New York State Police should do so starting at the top management. However, if a progressive and strong leader is appointed as superintendent of the state police in the meantime, that may negate the need for such a commission."

Terry O'Neill, a public safety advocate and frequent Albany commentator, agrees that the review should start at the top. "The organization does not need to be restructured. The state police is a very healthy, sound organization. The problems seem to stem from how they interact with the first family. Something is going on between the second floor and the third, where the superintendent's office is." O'Neill also said he thinks a strong superintendent could install the discipline the organization needs.

"A lot of us worry that the brand of the state police is being tarnished with what is going on," he said "I don't know if this is criminal or not, but this is unethical," said O'Neill. "Everyone should be on their best behavior, and some people need to be fired."

O'Neill, who worked as a legal advisor for the New York State Division of Criminal Justice Services under Gov. Mario Cuomo, said he never saw this kind of thing go on between troopers and Cuomo's office during his time at the capitol. "Back to the very beginning, state troopers have prided themselves on their relationship with the governor," said O'Neill, "but this is making people look bad."

Eugene O'Donnell, a professor at John Jay College of Criminal Justice and a city police department veteran (and no relation to Denise), said he also believes the new commission should focus on leadership. But, he said, picking those who would sit on the commission is critical. "You need to staff the commission with former FBI agents, people from law enforcement -- rock solid police, judges -- people who don't take calls from people, people who can say no to a politician."

Secondly, he said, the commission should consider establishing rules to limit contact between the executive branch and the state police superintendent. "You need to clear things up and make sure there are only two times when the governor should speak to the superintendent: when he hires him and when he fires him. It should work something like the Bloomberg-Kelly model, the opposite of the Giuliani-Kerick model."

Maria Haberfeld, professor of police science at John Jay College of Criminal Justice, said that she would advocate changing how the superintendent is appointed. "It is very hard to change police culture. The police are a very political organization -- people may not realize it but they are appointed by politicians. So if you want to change the culture you have to change this -- not so much the organizational structure, but who heads it."

Haberfeld said she thinks an external commission made up of "individuals who can be held accountable for their choices" should be created to name a superintendent. "Until the appointment isn't in the hands of one individual, nothing will change," said Haberfeld.

Eugene O'Donnell disagrees. He points to former Los Angeles Police Chief Daryl Gates, who was appointed by commission, but according to O'Donnell, was answerable to no one but himself.

What should a commission look for in a candidate for the job? "You need to look for a candidate who has a history of questioning the politicians. You can find it in their file. I believe in promoting from within the organization, but you don't want someone with a perfect file," said Haberfeld. "You don't want someone with a stellar record, because I would say this is someone who will do anything they are told. I would look for someone with a history of being independent, not just doing what the mayor or governor tell them. You're looking for a troublemaker -- not the company man or woman who will always do what they are told."

Too Much Detail

Eugene O'Donnell and others have suggested that reducing the 200-trooper executive detail might help the situation. "Two hundred people! That is the police force of White Plains protecting one person. It goes to their head," O'Donnell said. "That's why you have New Jersey Gov. Jon Corzine speeding down the highway to get to the Rotary Club. He's got guys with receivers in their ear. It makes these guys feel above the law."

State police officials have pointed out that troopers from the executive detail aren't assigned solely to protect Paterson but also to provide security for Empire State Plaza, the Executive Mansion, the State Office Campus and Paterson's office in Manhattan.

Nevertheless, O'Donnell suggested there might be ways to reduce the reliance on state troopers as members of the detail for these tasks. Others have suggested rotating the troopers assigned to the detail out on a regular basis.

No matter the solution, legislators, experts and law enforcement officials say that action needs to be taken as quickly as possible to restore faith in the state police and to set an example for those inside the organization. "It's important to address this; this goes all the way down to the street cop who says, 'Oh, this is the way it works!" said O'Donnell. "'You have to be connected.' Well I don't think this is the way it works, but a statement needs to be made so that this does not affect morale and job performance -- 'cause you will get cops who say, 'See, this is how it works! I told you so.'"

Correction: This story originally incorrectly described the Knapp Commission. It has been conrrected.



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