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Family Court judge orders birth control in neglect case

Decision invites review by Fourth Department

In one of her last decisions before retiring at the end of 2016, Monroe County Family Court Judge Patricia E. Gallaher ordered a woman not to get pregnant again until after she regains custody of her youngest child.

The Hon. Patricia Gallaher

The Hon. Patricia Gallaher

Assistant Monroe County Public Defender Ronald Lugbill, who represents the mother identified in court documents as Brandy F., said Gallaher’s order not only went beyond what the Monroe County Department of Human Services requested, but went beyond what state law allows her to do.

The social services caseworker “may” discuss family planning with a client, Lugbill said, “but the statute doesn’t allow the court to order a respondent to do family planning.”

‘Not good law’

Gallaher’s 20-page decision, issued on Dec. 27, orders “the drug-addicted admitted prostitute” to:

  • Listen to birth control counseling.
  • Visit her obstetrician-gynecologist for advice “about birth control, sexually-transmitted diseases and anything else.”
  • See “her regular medical doctor regarding her health generally, including her addiction.”
  • “Take whatever steps she chooses (at no financial cost to her … ) to prevent her from conceiving another child fathered by anyone, until she gets baby Steven safely out of foster care and back in her care.”

“This order does not compel birth control measures, but rather directs both DHS and the mother to comply with the statute already in place in the Social Services Law, requiring that family planning services be discussed, offered and paid for by DHS,” Gallaher wrote.

While the text of the New York Social Services Law at issue requires social services commissioners to make sure that their staff inform clients of the availability of family planning services and ask if they want such services, the law includes this caveat: “Nothing herein shall be construed, however, to require or permit coercion of such persons to request or receive family planning services.”

Lugbill said Gallaher’s order is “not a recommendation by the court, it’s a court order for her to go to a doctor and go get family planning counseling.”

Gallaher’s decision “doesn’t really cite any law in support of the decision except for a case that was overturned, that is not good law, so that’s also unusual,” Lugbill said.

Same problems

The case to which Lugbill is referring is Matter of Bobbijean P., in which former Monroe County Family Court Judge Marilyn O’Connor prohibited a couple from conceiving another child until the mother rehabilitated herself enough to regain custody of her children.

That portion of O’Connor’s decision was vacated in 2007 by the Appellate Division of state Supreme Court, Fourth Department.

“We conclude that the court had no authority to prohibit respondent from procreating,” the Fourth Department panel wrote.

Gallaher was O’Connor’s law clerk when O’Connor issued the Bobbijean decision. Attorney Christine F. Redfield, who was the attorney for Stephanie P., the mother of Bobbijean, later became Gallaher’s law clerk until Gallaher retired at the end of 2016.

Gallaher’s decision “suffers from all of the same problems as the Bobbijean case,” said Erin Harrist, a senior staff attorney for the NYCLU.

In the Bobbijean case, the New York Civil Liberties Union filed an amicus brief in support of the motion to vacate O’Connor’s order.

“It really harkens back, some of the language in here, to efforts to use eugenics from back in the 1930s on who gets to have children and procreate and who doesn’t,” said Harrist.

In her Dec. 27 decision, Gallaher described O’Connor’s decision as “courageous and cutting edge.”

“Accolades for that common-sense decision came in from all over the country and even from as far away as Australia,” Gallaher wrote.

“What Judge O’Connor said was so obviously reasonable — it caught people’s imagination and they were clearly ecstatic that someone finally mentioned the proverbial ‘elephant in the refrigerator’ — i.e., people having endless babies they cannot take care of, at everyone else’s expense and with no regard for those children,” Gallaher wrote.

Gallaher is anxious to have the Fourth Department to review her decision.

She wrote that the Bobbijean decision was reached “on a procedural hinge, not on the constitutionality of the provision requiring no further conception of children until their existing children were returned to one or both of the parents.”

“In fact, this Court urges a review on the constitutional issues raised herein,” Gallaher wrote.

The Fourth Department may consider the constitutionality of a law involving a “recurring, novel and substantial issue,” and the prevalence of similar cases involving recurring neglect filings involving drug-addicted parents that strap societal resources makes this a “recurring, novel and substantial issue,” she wrote.

If her decision is appealed, Gallaher wrote, she hopes “the Fourth Department will take note of the change of circumstances that has occurred in our society, particular regarding heroin use on an unforeseen scale, and acknowledge it was (a) mistake to delete the common sense, no more pregnancies order” in the Bobbijean decision.

Matter of routine

“This judge will not pretend that having babies under such circumstances is alright, or be too afraid of being modified or reversed to try again to promote the fundamental new idea of Matter of Bobbijean,” she wrote.

“Having no more babies while the taxpayers are paying for caseworkers and courts to work hard to help a parent get his or her children back is a good thing and should be asked for and ordered as a matter of routine. Having no more pregnancies should be ordered like the drug treatment, mental health treatment, and parenting classes provisions which are boilerplate now,” she wrote.

Steven D. is the fourth child taken from Brandy F. for neglect. Steven D., and at least two siblings, were born addicted to drugs, which the mother used during pregnancy.

Brandy F. appeared in court once, only after Gallaher issued a warrant and she was delivered by Monroe County Sheriff’s deputies.

Lugbill said he has not yet decided “as to how, or if, we will respond.”

Gallaher declined to discuss the case. Also, Stephanie Leonardo, deputy county attorney representing the Department of Human Services, and Tonia Ettinger, who represented Steven D., declined to comment.

O’Connor could not be reached.