Disheartened by endless cases of heroin-addicted parents who appeared in her courtroom, a Family Court judge in New York in late December ordered an addict-prostitute to not get pregnant again until she was able to regain custody of her newborn son.
Her newborn son is the fourth child to be taken from her care because of neglect.
Family Court Judge Patricia Gallaher, who retired from the bench in December, wrote in her findings, “The testimony in this case clearly established that the mother had little or no prenatal care, that the baby was born prematurely with a positive toxicology for illegal drugs, and that the mother admitted use of illegal drugs during her pregnancy.”
She noted all of the woman’s children are currently being care for by other people.
“Society and its problems are changing, especially with the incredible rise in the use of heroin, and this court needs to adjust in response instead of doing the same tired routine which does not solve the obvious problems in so many cases,” she wrote.
The Democrat & Chronicle from Rochester published the story earlier in the week and says the Dec. 27 decision is now over a month old, but is making ripples in legal circles where possible appeals are being weighed.
The Monroe County Public Defender’s Office represented the mother in the case, identified as Brandy F. in court documents, and may appeal. The New York Civil Liberties Union, or NYCLU, is also considering assisting with an appeal.
Albeit the judge’s findings appear to be in the children’s’ and mother’s best interests, the Director of the Genesee Valley chapter of the NYCLU warns caution.
“I understand why the judge may have had good intentions here,” said KaeLyn Rich. “When it comes to interpreting here, we don’t want to set a precedent that the court has the authority to tell a woman not to get pregnant or a man not to procreate,” reports the Democrat & Chronicle.
The defendant’s public defender is setting up for an appeal.
Tim Donaher, whose office represents the woman, said Tuesday he is appealing the underlying decision.
Donaher said in an article published by The Seattle Times he could not comment about his client’s reaction to the order or whether she would comply with it.
The judge’s order supplemented a finding of neglect against the mother, identified as Brandy F., that set out a plan for her to follow. The order includes a promise not to jail the woman if she violates it and becomes pregnant.
The underlying question could be does a judge have the right to order a defendant not to reproduce? One scholar doesn’t believe the judge acted within her authority.
Fordham University sociology professor Jeanne Flavin said the order “reflects a profound disregard for the human rights and dignity of pregnant and parenting women.
“If the courts and our child welfare systems were truly committed to the health and well-being of families, they would ensure people have the support they need in order to feed, shelter, educate and care for their children in safe environments,” said Flavin, who is on the board of directors of the National Advocates for Pregnant Women, a reproductive justice organization.
The judge’s decision appears to be a page out of one of her mentor’s playbooks.
Gallaher was a legal clerk to retired Monroe County Family Court Judge Marilyn O’Connor, who issued a similar ruling in 2004 that made national news and led many to applaud O’Connor for the decision.
Gallaher mentions O’Connor’s decision in the Democrat & Chronicle article, calling it “courageous and cutting-edge,” but also notes that an appellate court overturned the ruling, deciding that a Family Court judge did not have the authority to order parents to have no more children.
That legal dynamic has not changed since 2004, though Gallaher in her latest ruling implores appellate judges to reconsider the earlier decision.
The Democrat & Chronicle story outlines the saddening tale of Brandy F. who admitted using illegal drugs prior to the actual delivery of this child, resulting in her and the newborn having positive toxicology screens at the hospital for both cocaine and opiates. It also chronicles the birth timeline of the other three other children whom the court system ordered removed from her care.
In the ruling, Gallaher said her goal was to allow Brandy to stabilize her life so she could one day have custody of her children.
“Having no more pregnancies,” she wrote, “should be ordered like the drug treatment, mental health treatment and parenting classes provisions which are boilerplate now.”
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