ROCHESTER, NY (Democrat and Chronicle) -- Disheartened by the parade of heroin-addicted parents who appeared in her courtroom, a Family Court judge in late December ordered an addict-prostitute to not get pregnant again until she was able to regain custody of her newborn son — the fourth child to be taken from her care because of neglect.
"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," Family Court Judge Patricia Gallaher wrote in the decision.
Gallaher retired at the end of December, and the 27-page decision reads like a salvo from a judge disturbed and dispirited by what she witnessed as a judge and previously a legal assistant in Family Court. And, she wrote, the epidemic of heroin in the community has led to more severe and frequent cases of parental neglect than in years past.
"This court has seen about a half dozen seemingly 'nice couples' show up as respondents in neglect cases where both are addicted to heroin and literally throwing their lives away — and the lives of their children — in just this year," Gallaher wrote.
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.
"I understand why the judge may have had good intentions here," said KaeLyn Rich, director of the Genesee Valley chapter of the NYCLU. "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."
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. (Conservative Fox talk show host Bill O'Reilly said O'Connor would be secretary of the U.S. Department of Health and Human Services in his "dream cabinet.")
Gallaher mentions O'Connor's decision, 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 ruling implores appellate judges to reconsider the earlier decision.
Four children neglected
In July 2016, Brandy F. gave birth to her son Steven, born at 29 weeks and displaying immediate signs of drug withdrawal. He was in the hospital for 33 days before being released. During the pregnancy, Brandy ingested crack cocaine, methadone and alcohol, according to court testimony. She said she did not know who the father was.
Testimony showed that she "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," Gallaher wrote.
Gallaher ordered the baby removed from Brandy's care. Court records also show that another son was born prematurely to Brandy in 2014; the boy was addicted to drugs and "had no identified father." A daughter was taken from her custody in 2011; the girl was also born an addict and "went through medically monitored withdrawal."
Another son was taken from Brandy's care in 2007 and has been living with his maternal grandmother since that time. While in Brandy's care, the boy "was not protected from access to (a) hypodermic needle."
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.
The children "would most probably rejoice in having (a) mother who was clean, sober and competent, and hopefully even would love them as a mother should love her children," she wrote.
The ruling makes clear that the onus of responsibility is not solely on Brandy. The state's Social Services Law requires that caseworkers "advise eligible needy persons periodically of the availability at public expense of family planning services for the prevention of pregnancy and inquire whether such persons desire to have such services furnished to them."
Gallaher's ruling directs the county caseworkers to offer family planning and contraception to Brandy, as the law allows. Caseworkers can not require family planning or the use of contraception for a client. The services and contraception are provided at no cost.
Gallaher declined to discuss the ruling. Brandy could not be located to discuss the decision.
Retired Judge O'Connor said that the decision from Gallaher, who helped draft the 2004 ruling, shows that many of the same troubling issues she and Gallaher saw in 2004 still exist, and that heroin may be exacerbating the societal problems.
O'Connor said she often encouraged county caseworkers to direct men and women to family planning services, which the county funded, but the county staff seemed loath to do so.
"The law requires it," she said. " ... And they just don't do it."
"The (county social services department) deals with the children coming into their care," she said. "They do not deal with preventing the children coming into their care."
O'Connor said that caseworkers do not have to discuss contraception or family planning with someone who is religiously averse to it, but that too often the county staff seemed disinclined to offer to discuss it with anyone.
"They're not dealing with the reality," she said. "They're simply handling the numbers.
" ... The court is not ordering somebody to get an abortion, to go against their religion, to go against privacy and not have sex," O'Connor said.
But opponents of the ruling claim the 2004 and current decision do just that — dictate to a woman what she can do with her body.
"It really violates the constitutional right (to privacy) and could set a bad precedent," said Rich, of the NYCLU.
The NYCLU, Planned Parenthood and others opposed O'Connor's 2004 ruling, and the privacy issue was often the crux of their arguments.
"The implications of this condition are far-reaching," the organizations and others wrote in a 2004 brief appealing O'Connor's ruling. "It would permit unprecedented state intrusion into private decisions concerning reproductive health."
While the appellate arguments focused in part on sweeping issues of privacy, the regional appellate court reversed the ruling on much more narrow grounds, basically saying that a Family Court judge did not have the legal autonomy to issue such an order.
The legal obstacles do not appear to have changed in the past 13 years, though the judges on the appellate court have. Gallaher in her decision encourages the appellate judges to take a fresh look at the decision.
"Abandoning your child is endangering the welfare of a child and it is a crime, not a constitutional right," Gallaher wrote.
Gallaher acknowledges that a violation of her order could present a quandary: Just what would a judge do should Brandy get pregnant again? Obviously, a judge would not order an abortion, so jail could be a response, though Gallaher wrote that jail also "is not the intent of this decision."
Instead, she said, she hoped the ruling would force both Brandy and the county to look at the best way to ensure Brandy had no more children until she is fit to care for them.
"Family planning advice a day after a pregnancy has occurred means the advice is only good to prevent the next pregnancy," she wrote.