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  • Failure to Protect
  • Volume 12 | Fall 2008

practice tips

Practice Tips: Using Nicholson in Other Jurisdictions

These practice tips were prepared by our author, David Lansner, to assist you in bringing the litigation strategy in the Nicholson cases to your own jurisdiction.

  1. Choose the Best Plaintiffs. You undoubtedly have many clients who could be plaintiffs in a Nicholson-type case, and many clients who have been abused by the child welfare system.  For impact litigation such as Nicholson, you should choose the plaintiffs who have the clearest, cleanest cases that will show the problem to the judge.  Avoid clients who have complications, like prior histories of neglect cases not related to domestic violence.  While they may have been mistreated by the child welfare system, the more complicated their past history with child welfare, the less likely you are to be able to illustrate the systemic and constitutional issues clearly and concisely.
  2. Choose the Best Court.  In your state, is the state court or federal court more likely to be receptive to your case?  If you are not familiar with practice in federal court, find a firm which is and which will help you.  Do not be afraid of federal court.  They may understand more.
  3. Choose the Worst Defendants. One of the most persuasive parts of the Nicholson case was putting the managers on the stand and showing the judge that these were not dedicated, professional social workers but ill-educated, ill-trained bureaucrats who were making poor, illogical decisions and looking out for their own interests instead of the children’s interests.
  4. Team Up with Advocates. A large part of your job in litigation is to educate the judge about domestic violence and the child protection system, which the judge may know nothing about.  Your advocates can provide you with expert witnesses to testify about the dynamics of domestic violence and with practitioners who can testify about how the system works and what has happened to their clients and how they have developed better systems that protect children without hurting them. In Nicholson, the City had actually run two demonstration projects that were very successful in protecting children in DV homes without removing the children from their mothers.  We used those projects to show that the City could run a system that did it right.
  5. Removal and Foster Care are OftenHarmful to Children.   Thereis an enormous amount of literature and experts to present to the judge to show that you can’t just “err on the side of safety”: removal of children is in and of itself harmful to all children.  There are also many studies which show that children in foster care do worse than children who are not in foster care, even for children who were in “neglectful” homes.  Also, the rate of abuse in foster care is higher than the rate in the general population.
  6. Use Documents to Educate the Judge. Submit lots of reports for the judge that explain the system and the harm.
  7. Stay on Message.  Keep repeating your themes:
    • Protect, not remove
    • Why she doesn’t “just leave”
    • Hold the batterer accountable, not the victim
    • Removal of children from their homes is harmful to the children
    • Domestic Violence is the use and threat of force to control women. We need to ensure that Child Protective Systems do not end up as the use and threat of government force to control women.
  8. Study and Cite Nicholson.  “Failure to protect” cases rest upon a tacit assumption that somehow battered mothers consent to being beaten, assaulted, and injured in the presence of their children.  In Nicholson,both the federal and state courts wrote excellent decisions analyzing and dispelling many of the myths that inform child protective services intervention in child welfare cases. The best way to use Nicholson in other jurisdictions is to use it. Cite to it.  Examine the reasoning and adopt it!