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Jing Kelly strives to keep up hope during years of a custody battle for her son
By SHAWN COHEN
THE JOURNAL NEWS
(Original publication: December 3, 2006)
NEW YORK
Jing Kelly sleeps in the living room of her Queens apartment, reserving her only bedroom for her son, despite the fact she hasn't seen him for nearly four years.
The bed is made with blue sheets, on top of which rests an unopened toy Porsche she hopes to give him. In the closet is a blanket she knitted for him while she was in prison. And on the night table, there's a picture of the boy, wearing a San Francisco baseball cap and a smile exposing a space between his two front teeth.
"He will know right away when he sees me that I'm his mom," she said, imagining his return. "Once he sees me, everything will just come back."
She hasn't seen or heard from her son, Tristram, since January 2003. That's when she was arrested for abducting the child from Larchmont to China during a custody dispute with a husband she claimed was an abusive alcoholic. She was sent to jail for a year, and has been waging a court fight ever since to win back her child, who is now being raised by his paternal uncle and his wife in San Anselmo, Calif., north of San Francisco.
"This case is dragging forever," Kelly cried after a recent court hearing, one of scores she's attended in multiple jurisdictions.
When one of her lawyers tried to cheer her up by insisting the delay was to be expected, Kelly shouted at him, "You don't care!"
A supporter then hugged her and said, "Jing, you'll be fine. You'll live through today and tomorrow and you'll be stronger."
In an interview later that day in her home, Kelly said her ordeal has been "torture," especially her realization that Tristram, now 6 1/2 years old, is calling another woman his mom. But she refuses to give up and says she is doing all she can to stay strong for her son, working full time as a product coordinator in the garment industry and seeing a therapist while keeping up with her seemingly endless court battle.
"I do not want to disappoint my son," she said. "I want him to see a healthy mom. I want him to feel the strength, like I'm a healthy, loving, strong mom, because he's depending on me."
It was her love for him, she said, that prompted her to flee with him to China in 2001 - a crime she still refuses to apologize for.
"Did I violate the court order? Yes, I did," she said, but added: "I would never ask for forgiveness. My intention was to save Tristram."
She said she fled because she didn't want him to end up with then-husband Craig Kelly, a career prosecutor she accused of beating and sexually assaulting her, of sleeping with prostitutes and drinking in front of their child.
As Family Court tried to sort out competing claims of domestic violence in 2000-01, Tristram was placed with Craig Kelly's sister, Gail Hiler, in Larchmont. Jing Kelly, later saying she was fearful of her husband's access to the boy, whisked him to the airport during an unsupervised visit in June 2001.
Hiler denied the claims about her brother, who died of stomach cancer in the fall of 2002. She, in turn, accused Jing Kelly of being abusive and mentally unstable.
Kelly flew to her native China and spent the next 18 months there. She returned only after her husband's death, and was arrested upon landing with Tristram in Vancouver, Canada.
That was Jan. 3, 2003, and she has had no contact with her son since.
She has been barred from visiting, calling, even e-mailing the child, though she did skirt the restriction earlier this year by posting a birthday message to him on her Web site. The only new pictures Kelly has seen of her son were from last month, when they were presented as evidence in a Family Court hearing.
She cried when she saw the photos. Now, she has a framed copy of them beside the bed she has prepared for him.
"I just hope there's nothing wrong with Tristram," she said, noticing a mark near his lip that she fears is a scar. "He looks nothing like his baby pictures."
She has been waging her legal battle on several fronts, with open cases in family and civil court and appeals pending in her criminal custodial interference conviction and Family Court rulings.
Taking center stage is the courtroom of Sara Schechter, the Family Court judge who was handling the custody case before Kelly fled. Schechter awarded Tristram to Hiler while Kelly was in jail; Hiler then sent Tristram to live with her brother in California.
"Can you blame me if I have lost faith in the system, lost faith in this judge?" said Kelly, who failed in her effort to change judges. "She's definitely biased."
Hiler refused to comment for this article. Phil Schiff, a lawyer who handled her case in Family Court and is now representing her California brother as he strives to retain custody of Tristram, did not respond to calls.
Jing Kelly's parents, who live in Lower Manhattan, and a small but persistent group of advocates have rallied around her, including state Assemblywoman-elect Ellen Young and City Councilman John Liu, joining her in court and writing letters on her behalf.
They decry the "injustice" they say started in September 2000, when New York City child protective service workers removed Tristram after she won an order of protection excluding her husband from their apartment.
"This case goes beyond what imagination could conjure," Liu said, "that a person could be beaten by their spouse and then penalized by the bureaucracy for being beaten by her spouse. Then she's been dragged through this torturous court process that seems hellbent on keeping her from ever seeing her child. To not even allow supervised visitation, there is absolutely no common sense to that."
Her lawyers have also become missionaries, representing her on a pro bono basis.
"It is fair to say that the law enforcement officials and the Family Court judge have both failed Jing and Tristram here and, worse, have enabled misguided, nonparent paternal relatives to conceal and isolate Tristram from his true mother and his true maternal grandparents," her lawyer, Robert Wayburn, said. "The fact that this mother has been allowed no contact with her son in nearly four years of protracted litigation is astonishing and, quite frankly, alarming."
Kelly said she's grateful for the support, but conceded she often feels alone in her grief and wonders whether her supporters have her best interest in mind, particularly her lawyers, who have clashed over legal and public relations strategies.
"I can honestly say I'm the only person in court who truly wants what's best for Tristram, who truly cares for Tristram," she said.
She's also frustrated over the pace of the process, uncertain when it will end, though her lawyers are confident she will eventually win because she is the only natural parent and has never been deemed mentally unfit.
"I have to be patient," Kelly said. "I really have to be patient."
It's the vision of seeing her son again that keeps her moving forward.
"I will be the happiest woman in the world if I could just be with my son," she said back at her apartment. "I don't think I'm going to cry, not in front of him, because I don't want him to be sad. I know I can do it. I know what's best for him."
Reach Shawn Cohen at spcohen@lohud.com or 914-694-5046.
Mother jailed for taking son to China one step closer to visitation rights
By REKA BALA
rbala1@lohud.com
THE JOURNAL NEWS
(Original publication: August 6, 2006)
NEW YORK A woman who has been fighting for custody of her 5-year-old son and was jailed for more than a year after fleeing the country with him is now one step closer to seeing her child, officials said last week.
A state appellate court ordered a lower court judge Friday to grant a visitation hearing for Jing Kelly, who spent 13 months in jail for absconding to China with her son, Tristram, during a bitter divorce and custody dispute, officials said.
Family Court Judge Sara P. Schechter was told by the Appellate Division of state Supreme Court she must follow a November 2005 ruling handed down by the higher court that gave Kelly the right to see the boy, who has been living with his paternal aunt, officials said.
Kelly's attorney, Robert F. Wayburn, said he wants Kelly, who has not seen her son in more than 42 months, to have the hearing by the end of the month and before the start of school.
"Our position is that there should be no further delay," Wayburn said.
In June 2001, Kelly picked up her then 13-month-old son at the Larchmont train station and fled to China, claiming she was trying to protect the boy from her husband, Craig Kelly, who she said was abusive. When Craig Kelly died of cancer in 2003, his sister, Gail, got custody of the child.
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不许熊晶探儿令人震惊
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| 05年12月31日 |
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【本报记者管黎明12月30日纽约报道】熊晶案29日经历了重新审理后的第一次听证，而法庭当天禁止媒体入内，当事双方也三缄其口，但熊晶早前的律师韦柏(Robert Wayburn)作为一名了解和一直关注此案的人士在接受本报采访时谈了自己的看法，但他强调自己目前已经不经手此案，因此他的看法不代表熊晶本人或现在的律师金（Nam Hee Kim）的意见。熊晶目前的律师金来自于非盈利机构家庭庇护中心(Santuary for Families)。
韦柏在谈到案子的最新进展时表示，虽然上诉法庭的决定在11月中旬就已经作出，而且上诉庭的决定是要求家事法庭立即就孩子的探访及监护权重新审理，但该案实际上一直到12月末才排上法庭的日程，因此才拖到29日开庭，这样一来熊晶无论如何在圣诞节期间是见不到儿子了。韦柏称，熊晶本应该在2003年就被给予探访孩子的权利，但直到此次最新的庭审和下次开庭之前，熊晶都被拒绝了这一探视的权利，这一点令人震惊(astonishing)。韦柏表示，只有在强有力的证据证明亲生母亲的探访会对孩子造成巨大负面影响的情况下，法庭才可拒绝母亲的探访权，但熊晶却在过去三年多里从来没见过儿子一眼。
韦柏表示，上诉庭本来要求立即就熊晶的探访权作出听证，但法庭却要先决定熊晶的精神状态再考虑是否给予她这样的权利，这就意味着在下次开庭之前熊晶还是不能同儿子见面。韦柏认为，很明显的事实是，如果在有人监视的情况下允许熊晶探视自己的孩子无论如何也不会对小孩造成任何伤害，而法庭连这一点都拒绝是非常错误的。
对于熊晶前夫一家为何要如此绝情地对待熊晶，并企图让小孩对母亲一方的家庭一无所知，韦柏说，他本人对此也不得而知，难道因为熊晶是中国人？抑或是因为她在丈夫去世前偷偷将孩子带回中国而令他的前夫未能见上孩子最后一面？韦柏称，不管怎样，这都是不应该的－－这些人没有权利剥夺熊晶的监护权甚至对孩子的探访权。而至于本案的法官切特(Schechter)，韦柏表示，她看上去是在报复熊晶，因为熊晶当时违反了她(切特)的临时假释令而带着孩子偷偷跑回中国，这令切特非常非常难堪。
另一件在韦柏看来不应该的事是，法官居然在29日的庭审中允许熊晶的小叔道格拉斯就干涉此案递交申请。韦柏表示，只有在另一方当事人(熊晶)同意的情况下，法庭才可允许别的人加入并干涉此案，而法庭并没有就此征求熊晶的意见，而且道格拉斯是在法庭毫不知情的情况下带走孩子，这是一种欺骗，对孩子也不利。韦柏并表示，实际上，最初将孩子从熊晶身边带走的理由已经不复存在－－熊晶的丈夫已去世，两人不可能再发生争吵，而且即便当时两人的争吵，实际上也并没有影响到孩子，因为争吵时孩子虽然在家，但并没有看到父母的争吵，而且当时的小孩只是个婴儿。但仅仅是为了这个现在已经不复存在的理由，熊晶仍然不能见到自己的孩子，这的确令人难以置信。韦柏称，切特作出了一系列错误的判决。对于是否还能指望切特最终公正裁决此案，韦柏称，只有等到最后结果才会知道。 |
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Chinese tot-grab ma wins a round in custody battle
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BY LISA MUΡOZ
DAILY NEWS STAFF WRITER
Originally published on November 20, 2005
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A Manhattan mother, who was locked up for a year for stealing away with her son to her native China, has taken a major step toward winning back custody of her child from her former in-laws.
A state appellate court last week overturned a Family Court ruling that gave custody of Jing Kelly's son, Tristan, to his paternal aunt Gail Hiler.
The unanimous decision by the five-judge Appellate Division stated that Manhattan Family Court Judge Sara Schecter should have granted Hiler only temporary custody of the now 5-year-old boy. The court said Kelly could continue to pursue regaining permanent custody.
"It's an absolute victory for Jing Kelly," her attorney Jianming Shen said.
In June 2001, Kelly picked up her then 13-month-old son from Hiler at the Larchmont train station and fled to China. She said she was trying to protect them from her husband, Craig Kelly, who she claimed beat and raped her at gunpoint. He was an assistant Manhattan district attorney.
A month later, a federal judge signed a warrant for her arrest. During 18 months in China, the couple divorced and Craig Kelly died of stomach cancer. When Kelly entered Canada in the beginning of 2003, she was arrested and authorities took Tristan.
A Westchester County jury cleared her of felony charges last year, but found her guilty of misdemeanor custodial interference.
City Councilman John Liu, who has championed Kelly's case, called the appellate court decision a resounding victory "for all victims of domestic abuse."
Kelly hasn't seen her son since her former sister-in-law was granted custody three years ago. Kelly has not been allowed to appear at custody hearings.
Shen said Kelly hopes the appellate ruling will bring her son back to her.
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Mom who fled to China gets new custody hearing
By TIMOTHY O'CONNOR
THE JOURNAL NEWS
(Original publication: November 19, 2005)
NEW YORK Jing Kelly, the mother who served 13 months in jail for absconding to China with her son during a bitter divorce battle, has won a victory in her ongoing battle to wrest custody of the boy from her deceased ex-husband's family.
A state appellate court has overturned a decision by a Family Court judge that awarded custody of the now-5-year-old boy to the sister of Craig Kelly, who died of cancer in 2003. The five-judge panel ordered Family Court Judge Sara P. Schechter to schedule an immediate hearing on possible visitation rights for Jing Kelly that would allow her to see her son, Tristram, for the first time in almost three years.
"It's an absolute victory for Jing Kelly," said Jianming Shen, her lawyer.
She fled to China in June 2001 after she picked up her 13-month-old at the Larchmont train station from her sister-in-law, Gail Hiler. She claimed she was trying to protect the boy from Craig Kelly. She accused her husband of beating and raping her, though both had been convicted of domestic abuse against the other.
A federal judge signed a warrant for her arrest in July 2001.
Jing Kelly spent 18 months in her native China during which time Craig Kelly obtained a divorce and won custody of the child. When he died of cancer, his sister, Hiler, gained custody of the boy.
Jing Kelly flew to Canada with Tristram in January 2003 after her ex-husband's death. Canadian authorities arrested her after receiving an advisory from Westchester County authorities.
She was extradited to New York to face custodial interference charges.
In January 2004, a Westchester County jury acquitted her of the most serious charge, felony custodial interference, but she was convicted of a misdemeanor count of the same crime. She was released from the Westchester County jail after the trial because she had already served the maximum penalty for her conviction.
She immediately launched her attempt to regain custody of her son. A Family Court judge in Manhattan awarded Hiler custody last year. Jing Kelly appealed that ruling to the state appellate division.
In a ruling inked Thursday, the appellate court ruled that Schechter erred in not giving Hiler temporary custody with an eye toward possibly returning the child to Jing Kelly permanently.
Hiler and her husband, James Hiler, a lawyer who represented her in the appellate case, did not return calls seeking comment. Jing Kelly could not be reached for comment.
Her lawyer said she hoped the ruling would pave the way for her to be with her son again.
11-17-2005
Statement from Councilman John Liu:
"This is a resounding victory for Jing Kelly and for all victims of
domestic violence who are victimized first by their abusers, then by
misguided child agency policy, and in Jing's case, again by a Family
Court proceeding seemingly blind to actual circumstances.
Nonetheless, true victory can be claimed only when Tristram Kelly is
reunited with his mom. We now turn our full attention towards this
objective."
"The injustice suffered by Jing and Tristram is most heartrending in
that Tristram, now five years old, has not seen his mother for three
years and is reported to have no recollection of Jing. Furthermore,
Tristram is now old enough to question his own identity and his
relationship to his caregivers. We will spare no effort to reunite
mother and child, to begin to heal the damage already inflicted upon
this innocent and defenseless little boy."
熊晶監護權案聽審 現曙光
上訴庭法官質疑 當初孩子判給小姑是否屬「非常情況」
| 熊晶爭子官司，在上訴庭似乎見到轉機，當事人也露出難得的笑容。圖右起為市議員劉醇逸助理楊愛倫、熊晶、戴維斯、魏本。(本報記者謝朝宗攝) | | 【本報記者謝朝宗紐約報導】紐約州上訴庭14日聽取熊晶爭取兒子監護權的上訴。上訴庭對於熊晶之子下落不明相當關心，頻頻詢問，也質疑當初把小孩監護權判給熊晶的小姑時，能否證明是「非常情況」。
熊晶的律師表示對於上訴聽審相當滿意，有信心可以得到一個比較好的結果。
上訴庭由五位法官聯審，昨天上午聽取熊晶爭取監護權的案子。在家事法庭始終不能得到有利結果的熊晶，另起爐灶，以上訴庭去年的一起判例，指出兒童保護局不能只要一碰到家暴案件，就把孩子帶離父母中被虐的一方，要求重新審訊熊晶小姑海勒(Gail Hiler)得到監護權的決定。
代表熊晶上訴的是婦女庇護所律師戴維斯(Mary Davis)，她還沒有發言，法官便先問她知不知道孩子在哪裏。戴維斯立即表示，三年來他們完全不知孩子的下落，也不知道他過得好不好。
戴維斯表示，他們認為當初家事法庭把監護權判給海勒時，並未構成法律上的「非常情況」(Extraordinary cir-cumstances)，要求上訴庭「最少」要重開一次聽審，檢查當初法院所做的決定是否正確。他們更認為，上訴庭應該要取消當初的監護權決定。
對於小孩Tristram的法定看管「法律援助協會」律師史坦(Judith Stern)，法官也是一開始就先問到底孩子在哪裏？史坦表示他們也不知道，不過8月時海勒曾把孩子帶到辦公室來給她看過。基本上他們認為孩子和照顧他的人相處得很好，所以他們不希望孩子突然被帶離熟悉的環境。但是他們也希望能對孩子的生活環境做進一步調查，並支持重開監護權的聽審。
至於海勒則是由先生James代表出庭陳述。海勒表示，當初法庭轉移監護權，確實是在一個「非常情況」下。他指出兒童保護局認為孩子沒有得到良好的照顧；孩子的母親有精神問題；她後來更違反監護權規定，綁架孩子帶到中國；之後她又被捕定罪坐牢。
不過法官質問，這些「事實」並沒有在當初的判決時指出來，現在講不合法律的公正原則。
兒童保護局也有律師出庭，不過她並沒有陳述，法官也沒有問她問題。
一直幫熊晶打官司的律師魏本(Robert Wayburn)聽審後表示，從上訴法官問的問題看來，他相信會對熊晶做出有利的判決。法官似乎也同意，監護權決定時並沒有達到「非常情況」的要件，所以海勒不應該取得監護權。他說，如果上訴庭駁回監護權的判定，那最有可能是目前照顧Tristram的人要出來爭取。
2005-10-15
Mother who fled to China with son fights to regain custody
By SHAWN COHEN
spcohen@thejournalnews.com
THE JOURNAL NEWS
(Original publication: October 15, 2005)
NEW YORK Jing Kelly, who was arrested for fleeing to China with her son during a heated custody dispute, took her battle to a Manhattan appeals court yesterday, hoping to win back custody of the boy from his paternal aunt in Larchmont.
As Kelly sat in the gallery clutching pictures of her son, Tristram, her lawyer, Mary Davis, presented her case to the Supreme Court Appellate Division in Manhattan, seeking to reverse a Family Court order that awarded custody to Gail Hiler shortly after Kelly's arrest in 2003.
James Hiler, Gail Hiler's husband and attorney, argued that the Family Court judge ruled properly, given that Kelly had fled with the child and had a history of mental illness. But Davis contended this did not rise to the level of "extraordinary circumstances," which are required for a nonparent to be awarded custody of a child.
Davis also raised concern that the boy is no longer living with Gail Hiler: She has said Tristram has been living with relatives outside Westchester, but would not say where or with whom.
Kelly fled in June 2001 after picking the boy up for an unsupervised visit in Larchmont.
She said she left because she had no legal alternative to protect the boy from her husband, Craig Kelly, who had moved into Hiler's home. Kelly alleged he was a drunk who beat and raped her, though each was found guilty of domestic violence against the other.
She spent 18 months as a fugitive in China, her homeland, before she flew to Vancouver, Canada, after Craig Kelly died of cancer.
Jing Kelly has been trying to regain custody since she was released from the Westchester County jail in January 2004, when she was acquitted of felony custodial interference, the top charge, and convicted of misdemeanor custodial interference.
The lawyers said they expect a ruling from the Appellate Division within a few weeks.
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侨报首页 > 社区
熊晶儿子未与其姑妈住一起
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| 05年09月13日 |
【本报纽约讯】熊晶与儿子毛毛分别已两年多了，如今6岁的毛毛已记不起亲生父母。不久前熊晶在一次记者会上说，她已有960天没有与儿子见过面，也没有他的任何消息，连他现在身在何处、由谁抚养都毫不知情。
熊晶的律师罗伯特·韦柏（Robert F.Wayburn）11日根据纽约法律援助协会（Legal Aid Society）递交给法庭的一份报告指出，熊晶的儿子Tristram（小名毛毛）目前住在外州某个地方，称照顾他的人为爸爸妈妈，但是对亲生父母却已经没有记忆。
法律援助协会的这份报告说，今年8月份Tristram的代理律师（law guardian）在其办公室见了Tristram并与他谈话。Tristram看上去被照顾得很好，而且显得开心，他的言谈举止和兴趣也显得与他的年龄相符。他今年秋天将上学。报告中说，Tristram说他和爸爸妈妈住在一起，他们坐飞机到纽约州看盖尔姑妈（Auntie Gail）。Tristram记得曾经和姑妈住在一起，不过记不起Jing（生母熊晶的名字）和Craig（生父Craig Kelly的名字）。
法律援助协会在报告中说，Tristram的姑妈盖尔·希勒（Gail Hiler）说过去大约两年里Tristram一直住在同一个地方（纽约州以外），不过她没有说这个地方在哪里，也没有说小孩跟谁一起住。
纽约家事法庭把Tristram的监护权判给他姑妈希勒太太，熊晶对这个决定提出上诉，目前还在受理当中。
熊晶的律师韦柏说，从法律援助协会的报告中可以看出，Tristram目前并没有住在法定监护人希勒太太的家中，而是住在外州某个地方，这个地方究竟在哪里，他的亲生母亲熊晶不知道，他的代理律师也不清楚。韦柏说，如果希勒太太不要孩子住在她家，那么为什么她要争夺监护权呢？他认为应该让Tristram回到纽约州，让他在这里上学，这样他能够和母亲及外公外婆联系。
熊晶儿子监护权官司遥遥无期。不过去年10月份一个有关家庭暴力的新案例为熊晶带来了希望。在这个称为尼克尔森对斯科佩特（Nicholson v. Scoppetta）的案例中，法官判决不能因为一个孩子的母亲是家庭暴力的牺牲品而剥夺母亲的监护权。
市议员刘醇逸上个月在记者会上说，他向纽约州上诉法庭提交了一份书面协助报告（Amicus Brief，是由案外人就案件中涉及的问题所提出的法律观点，供法庭参考），希望上诉庭能够根据这个新判例改变2001年纽约郡家事法庭对熊晶案的判决。 |
Mom who fled to China fights for son
By BILL HUGHES
whughes@thejournalnews.com
THE JOURNAL NEWS
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Powered by Topix.net | (Original publication: August 27, 2005)
NEW YORK A New York City councilman angrily demanded justice on the steps of City Hall yesterday for Jing Kelly, a Chinese immigrant who has not seen her son for nearly three years after serving 13 months in jail for fleeing to China with him.
Councilman John C. Liu announced the filing of court papers in support of Kelly's challenge of a Family Court ruling that granted custody of her son to her late husband's sister.
Citing a recent ruling by the state's highest court against New York City regarding the procedure for removing children from both parents in custody disputes in which domestic violence is a factor, Liu called on the courts to return Kelly's son to her.
"Jing is a victim three times over. She is the victim of an abusive ... husband who beat and raped her," Liu said.
She met Craig Kelly in 1999, and within three months she was pregnant and they were married. The marriage quickly deteriorated into physical violence, with each partner accusing the other of abuse.
In the aftermath, custody of their son, Tristram, was awarded to Craig Kelly's sister, Mamaroneck resident Gail Hiler.
In June 2001, Jing Kelly picked up the boy from Hiler for a visit and fled to China. She remained there for 18 months until, she said, she was duped into returning by investigators from Westchester, who promised she might not be jailed if she returned voluntarily.
While Jing Kelly and Tristram were in China, Craig Kelly obtained a divorce.
He subsequently died of cancer, and his sister obtained permanent custody of Tristram.
Yesterday Liu displayed an enlarged version of the New York City Police Department's most-wanted Web page when Jing Kelly was in China. It listed her among murderers, rapists and armed robbers. She was the only person listed for the crime of "custodial interference."
"It's my feeling that you have to have connections to have something like that happen," Liu said, referring to Craig Kelly's position as a prosecutor. "This just doesn't come about through normal channels. Something has to happen behind the scenes."
After Kelly was arrested, she was held without bail for more than a year before a jury acquitted her of a felony charge of custodial interference, but convicted her of a misdemeanor, a conviction she is appealing.
After she was freed from jail, Westchester County District Attorney Jeanine Pirro defended her decision to bring the felony charge to trial, saying the misdemeanor conviction proved that Kelly had broken the law and deserved punishment.
Hiler, who could not be reached for comment yesterday, has called Kelly's allegations about her brother lies and criticized her for attacking a dead man who cannot defend himself.
Yesterday, Kelly wiped back tears as she spoke of not seeing her son for 960 days, since the day she was arrested in the airport in Vancouver, British Columbia, in January 2003.
"I suffer every moment of every day that I am not with my son," Kelly said. "All I want is to be reunited with my son."
Robert Wayburn, one of several lawyers working on Kelly's behalf, called her case the worst miscarriage of justice he has seen in 30 years of practicing law.
Wayburn expects to argue the custody appeal before the New York State Appellate Division's First Department in October.
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October 28, 2004
City Often Took Children Without Consulting Court
By LESLIE KAUFMAN
For years, child welfare officials in New York City have relied
heavily on a section of state law that was meant to be used only in
extreme emergencies - the power to remove children from possibly
dangerous homes and place them in foster care without first seeking
court permission.
Although no one keeps precise records, city officials estimate that
going back at least through the 1990's, when the number of children in
foster care peaked at nearly 50,000, about a third of those taken into
city custody came by way of what is known as an emergency removal.
Throughout, city officials have defended this policy as the result of
its determination to err on the side of caution, to prevent real harm
to children at risk and to avoid the kind of awful deaths that have
occasionally exposed the child welfare system's persistent problems.
But the use of emergency removals has also periodically earned the
city sharp criticism.
In 1999, most notably, a federal court chastised the city for too
often violating the due process rights of families and for needlessly
traumatizing children by removing them without warning from the only
homes they had ever known. In fact, in deciding a lawsuit brought by a
family against the city, the United States Court of Appeals for the
Second Circuit effectively put the city on notice: Emergency removals
were only for cases where the life and health of the child was in
imminent danger.
The city, though, stood fast. City lawyers reassured top officials at
the Administration for Children's Services that their workers should
continue to use their judgment in making emergency removals, and that
they would be vigorously defended in court for doing so.
"A.C.S. staff,'' a top city lawyer wrote to the agency, "should go
about their normal jobs as they always have, secure in the knowledge
that the city stands behind them and will back that up.''
As a result, the numbers of children being brought into foster care by
this most extreme of measures have remained significant.
Since 1999, in part because of the city's desire to keep families
together whenever possible, the total number of children entering
foster care has dropped drastically. But the percentage of those
placed through emergency removals remains very high.
From Jan. 1 to Sept. 30, the city's child welfare agency says it put
2,651 children in foster care because of worries over their safety and
welfare. Of those children, 54 percent were placed without a court
order.
Such statistics inflame the city's critics. "It shows clear and
deliberate indifference by city officials to the rights of children
and to the authority of the federal court,'' said David J. Lansner,
who was one of the lawyers who sued the city in federal court in 1999.
But some lawyers who represent children in foster care and their
parents said a powerful ruling made by the state's highest court on
Tuesday had given them new ammunition to again take on the city over
the practice of emergency removals.
The decision by the Court of Appeals, which laid out the conditions
under which children living in homes with domestic violence can be
placed in foster care, dealt at some length with the question of
emergency removals, and when they might be legally permissible.
"Emergency removal is appropriate where the danger is so immediate, so
urgent that the child's life or safety will be at risk,'' the court
wrote. It added that it thought such circumstances would be "rare.''
Karen Freedman, a lawyer involved in the case that prompted the
ruling, said such a standard could and should be applied much more
widely. "Emergency removals are the most traumatic to the child,'' she
said. "Often they happen with police officers in the middle of the
night. And I would say that in a very large portion of the cases I
see, they were not warranted.''
City officials, however, maintain that they already follow strict
standards for removal and that the 1,400 or so children who have come
into foster care through emergency removals so far in 2004 were all
serious cases.
The court ruling "affirms the practice we are already have,'' said
Zeinab Chahine, deputy commissioner for child protection. "If you
realize we've investigated 55,000 allegations of abuse and neglect,
the same as we did four years ago when there were so many more
removals, then you see that these children were really so
threatened.''
City officials also point out that the parents who lose their children
through an emergency removal have the right to go before a judge and
plead their case. Indeed, a judge is required by law to review such
cases within three days.
But lawyers, Family Court judges and experts who serve on special
advisory panels overseeing the city's child welfare system have argued
that there is an enormous gulf between what Family Court judges are
supposed to do and what really happens.
A 2000 special advisory panel report to the city's child welfare
agency, for instance, found that in many cases Family Court judges
simply rubber-stamped decisions to remove children from their families
made by caseworkers in the field.
Joseph M. Lauria, administrative judge of the city's family courts,
rejected that finding. He said that by and large, judges took the time
to evaluate seriously the city's arguments for removing children.
But Judge Lauria did acknowledge one criticism of the Family Court
system as it pertained to emergency removals. Many families agree to
delay an immediate hearing to challenge the city's decision to take
their child because they often have little time to meet and confer
with the lawyers assigned to help them in their cases.
Agreeing to postpone a hearing, though, has serious consequences,
lawyers, judges and court administrators concede. Because of the
Family Court's extraordinarily large caseload, it can take weeks or
months for a family to get to ask a judge to return a child from
foster care.
"Once a child is in care, the chances they will stay there are great
because of the structural way the Family Court system works,'' said
Liberty Aldrich, director of the domestic violence and family court
program at the Center for Court Innovation, the independent research
arm of the state's unified court system.
http://www.nytimes.com/2004/10/28/nyregion/28welfare.html
An editorial
Battered, not neglectful
(Original publication: October 31, 2004)
A groundbreaking decision by the state's highest court last week sharply cuts through some of the thick fog that has gathered around a warped tactic for trying to stop violence and abuse in the home: removing children exposed to the battering of their mothers for that reason alone. The Court of Appeals reasoned in a ruling issued Tuesday that such "emergency removal'' not only punishes the mothers but quite possibly the children, too.
In fact, Chief Judge Judith Kaye wrote, "removal may do more harm to the child than good."
A momentous ruling in the annals of domestic violence cases, it is in many respects a most narrow one. The state's high court had only been asked by a federal court to answer three questions pertaining to New York law, clarifying: child neglect, the impact on a child of witnessing violence, and justifying child removal.
Importantly, though, the decision provides a new opening to legally requiring that domestic-violence victims and children have greater access to, and receive, an array of services.
The New York high court opinion was requested in a case regarding the emergency removal of children from their homes by New York City's Administration for Children's Services because of their exposure to abuse inflicted on their mothers. Such removals are widespread in New York City, The New York Times reported Thursday.
In a case brought by three mothers and supported by many advocacy groups, federal Judge Jack Weinstein, U.S. District Court for the Eastern District of New York, found in 2002 that "the evidence reveals widespread and unnecessary cruelty of the City of New York toward mothers abused by their consorts, through forced unnecessary separation of the mothers from their children on the excuse that this sundering is necessary to protect the children.''
The city's position was that removal was consistent with child-protection mandates and that failing to prevent a child from witnessing violence was itself neglect. However, an injunction was issued to stop such child removals, and last year a federal circuit court allowed it to stand while it consulted New York's high court. Tuesday's decision will now be used by the federal appeals court weighing an appeal by the city.
With the New York ruling, both sides cited victory, leaving some advocates to worry that the practice will continue.
Kaye, though, was quite clear. A child- protective agency must offer sufficient evidence to a court to justify removal of a child from the home; and that evidence, where appropriate, must include "efforts made to prevent or eliminate the need for removal, and the impact of removal on a child,'' the chief judge wrote.
Logically, those efforts have to be interpreted as taking concrete action to help the child and the batterer adequate services, such as legal counseling, an appropriate safety plan, financial assistance and more. And as if it had to be said child removal must be weighed on a case-by-case basis.
When custody is taken away from a parent who has not committed a crime, without an attempt to improve family circumstances in the home, without considering its impact on the child, the rights of both mothers and children are violated.
As federal Judge Weinstein wrote earlier, "The limiting factor on what a battered mother does to protect herself or her children from the batterer is usually a lack of viable options, not a lack of desire.'' New York's highest court just told society it needs to give battered women, and their kids, more options.
http://www.thejournalnews.com/newsroom/103104/31edabuse.html
                
Subj: *** News Release *** CM LIU APPLAUDS HIGH COURT RULING ON REMOVAL OF CHILDREN
Date: 11/3/2004 3:19:28 PM Eastern Standard Time
From: Youngellen8
To: Youngellen8
For Immediate Release November 3, 2004
Contact: Ellen Young (646) 879-3728 Sent via Internet
*** News Release ***
***************************************************
CM LIU APPLAUDS HIGH COURT RULING ON REMOVAL OF CHILDREN IN HOMES WITH DOMESTIC VIOLENCE
"Tristram Kelly is Poster Child for Need to Reform System"
***************************************************
City Hall, NY - Council Member John C. Liu applauded the Court of Appeal's recent ruling to restrict the City's ability to remove children from mothers facing domestic violence only when "the danger is so immediate, so urgent that the child's life or safety will be at risk."
"This ruling by New York State's highest court is sorely needed. For far too long, the City has callously removed children from their abused moms," said CM Liu. "By itself, the practice of arbitrarily separating children from their mothers has been very harmful. However, in the context of domestic abuse, this practice has worsened the situation for abused mothers by victimizing them again and discouraging others from reporting abuse. The removal of children can no longer be tolerated - especially when required court orders are not obtained and the City only appears to be 'covering itself.' The system clearly needs to be reformed."
"Tristram Kelly is a poster child for the need to reform the system. Tristram was first removed from his mother, Jing Kelly, when he was four months old. Tristram is now four years old and is still separated from his mother. That should have never happened," said CM Liu. "Jing Kelly was abused and raped by her husband. After assurances from Family Court that her baby would not be taken away, the City promptly went to her home and took her baby away. We need to remedy this tragic injustice - in the meantime, the Court of Appeal's ruling will hopefully prevent the City from repeating this mistake."
# # #
_______________________________________________________________________
Sincerely,
Ellen Young
District Administrator
Office of Council Member John C. Liu
135-27 38th Avenue, Suite 388
Flushing, NY 11354
Fax: (718) 888-0331
Cell: (646) 879-3728
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