"It is not what a lawyer tells me I may do, but what humanity, reason, and justice tell me I ought to do." Edmund Burke, 1775
Baby Bobbijean was born in March 2003 at HighlandHospital. Within days, the Monroe County Department of Health and Human Services filed a petition classifying her as neglected. The newborn was taken from her mother, Stephanie P., on an emergency basis and placed in foster care directly from the hospital.
Stephanie and Bobbijean's father, Rodney, were livingat the time in the House of Mercy, a city shelter. Susan Burke, a DHHS caseworker who had worked with the mother during much of the pregnancy, testified in Family Court that she was concerned about the couple's ability to raise the child.
Thus began the case that resulted in Family Court Judge Marilyn O'Connor's unusual, and controversial, court order: that Stephanie is not to get pregnant again until she has regained custody of any of her children who are in foster care. And that Rodney is not to get any more women pregnant unless he has been given custody of any of his children who are in foster care. The implication: that both must prove their ability to care for their children before they have more.
The case, which has gotten headlines in Rochester and around the country, has stirred up controversy in the legal and human-services community.Like the tentacles of an octopus, the ruling stretches out in several directions. It pits procreation and privacy rights against the needs of children --- and the interests of taxpayers. And some of O'Connor's critics say it has ramifications that extend well beyond Bobbijean and her parents.
This wasn't the first time Family Court had become involved in Stephanie's life. Herthree older children all tested positive for cocaine after they were born and were eventually placed in foster care.
Her first two children, now ages 6 and 4, were taken from her custody in 2000, and their placement in foster care was renewed last year. Those two children were fathered by another man, and the pattern continued when Stephanie met Rodney. Stephanie gave birth to a boy who was placed in foster care in 2002, before he was a year old.
The couple was frequently homeless. DHHS investigations found a history of cocaine use and neglectful behavior. Social worker Susan Burke learned from officials at Highland and StrongMemorialHospital that Stephanie had been referred to substance-abuse treatment centers numerous times over the years. Initially, she made several attempts to treat her substance abuse, but didn't succeed. Eventually, she quit trying.
After Bobbijean was placed in foster care last year, neither parent made any inquiries regarding the child or indicated any readiness to take care of her, Burke testified in court.
And Stephanie is reported to be pregnant again, though it appears she was pregnant before the order was issued. Whether this results in "consequences," such as jail time for violating a court order, depends on the timing of conception.
In her ruling, O'Connor cited the need to protect the children. And she emphasized the financial burden placed on taxpayers by negligent parents. The budget for caring for foster children in MonroeCounty in 2001, the last year the data was available, was $32 million, she said.
"It is painfully obvious," O'Connor wrote, "that a parent who has already lost to foster care all four of her children born over a six-year period, with the last one having been taken from her even before she could leave the hospital, should not get pregnant again soon, if ever. She should not have yet another child which must be cared for at public expense before she has proven herself able to care for other children. The same is true for the father and his children. As to both parents, providing care for the children includes providing financial support."
"This is a practical, social, economic, and moral reality," wrote O'Connor. "In effect, Bobbijean was born to a 'no-parent family.' She is for all practical purposes motherless and fatherless. This is not acceptable."
The constitutional right to privacy, O'Connor writes, does not guarantee the right to have an unlimited number of children. She cites the 1972 case Stanley v. Illinois, which, she argues, implies that there is no right to conceive a child, only to conceive and raise a child.
In the majority opinion of the court in that case, Justice Byron White writes: "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights of man,' and 'rights far more precious... than property rights.'"
Critics have been appalled at O'Connor's decision."There's really no authority or case law cited" for the ruling, says attorney Scott Forsyth, a spokesperson for the regional chapter of the American Civil Liberties Union. "She just feels there's a compelling state interest to issue such an order."
"It's disconcerting," Forsyth says. "Is it unconstitutional? I don't know."
While ACLU members have met to discuss what, if anything, the chapter might do, Forsyth says he doesn't think the case will be appealed "because there is no attorney of record." The ACLU's legal services do not get involved in a case unless invited, says Forsyth.
Among the questions the ruling has raised: What are the limits of the state's authority over individual rights to have children?
"What concerns us most as an organization is that she [O'Connor] seems to be saying that society's interest in not paying for any future children trumps the mother's right to procreate," Forsyth says. "There are some real slippery-slope concerns with that."
That line of thinking, he says, could have broad implications. Forsyth cites large families with many children. They may not be a burden to the state now, but they might be when the children become senior citizens and need to draw from Social Security or Medicaid. If, as O'Connor suggests, the state's budgetary needs are more important than individual rights to procreate, could the state limit the number of children any family is allowed to have?
"Where do you stop with this line of argument?" Forsyth says. "Those people with large families have the potential to draw significant funds from the taxpayers."
In addition, Forsyth raises the question of accountability. A law is useless if there is no means to enforce it, he says. In this case, O'Connor doesn't stipulate the consequences of violating the order, though she makes it clear that the court would not force an abortion.
"What if the mother, in defiance of the order, does get pregnant?" Forsyth says. "How do you enforce such a provision?"
Another critic of the ruling, someone familiar with Family Court issues who declined to be quoted, says any serious attempt to save taxpayers' money while enacting efficient and humane child welfare policies must start with the adoption process.
The path from removal to adoption is a costly, bureaucratic affair, says this critic, one that typically lasts more than a year. The solution, the critic says, is to find ways to make the process less daunting and more effective.
The critic also believes O'Connor's solution is unconstitutional. For example, some religious faiths oppose many birth-control methods. Thus, O'Connor's ruling, which sets a precedent, might be used to justify ordering someone to violate his or her religious beliefs.
And what about neighborhoods that are crime-ridden or over-populated and are therefore financially costly to taxpayers? O'Connor's ruling, suggests the critic, might be used to justify birth quotas in those neighborhoods, similar to the Chinese government's policy.
Letting irresponsible parents have children they can't raise may not be acceptable to many people, suggests that critic, but it may be the price we pay for living in a free society.
O'Connor's ruling has plenty of supporters."Everybody keeps saying, 'It's going to get overturned,' but I'm not as sure," says EftihiaBourtis, the law guardian assigned to the four siblings in foster care. "I think Judge O'Connor gave a very thorough, well thought-out decision."
The ruling, says Bourtis, is in the best interest of the children, and doesn't violate individual rights. "I read the Constitution the same way Judge O'Connor does," she says. "You have the right to have children and raise them."
And Bourtis doesn't give much merit to Forsyth's objections about the ruling not being enforceable.
"Judges make rulings all the time that they can't enforce," Bourtis says. "Judges tell people, 'You can't take drugs....'"
"There are consequences to breaking a judge's orders," Bourtis says. "If she breaks Judge O'Connor's orders, then there are consequences."
Bourtis has been a law guardianfor four years, but has handled criminal affairs for more than a decade. She has seen first-hand, she says, the damage done by the cycle of abuse, in which neglected children eventually become neglectful parents.
"During sentencing, people would hate these people who are sentenced, who are drug addicts who don't take care of their kids," Bourtis says. "I thought to myself: What if I could meet them when they were little kids, when they were the ones who were being neglected?"
Her experience is that the children are as innocent and loving as others their age, says Bourtis. "They're just as beautiful as any other kids," she says. "They have the same hopes and dreams. It's devastating to see that shattered when they're so young."
All four of Stephanie's children are doing well, Bourtis says. Three are being raised together in foster care by relatives, and the fourth is in foster care with a separate family.
Bourtis says she applauds O'Connor's ruling because in her years of experience, she has found that there is no effective way to intervene in the destructive cycle that affects such children.
"What I found in Family Court is that nothing happens to the parents," says Bourtis. "It's the little kids who are hurt, who are victimized along the way, while nothing happens to mom."
"There are tons of drug programs, of parenting classes," Bourtis says. "But if the parents don't cooperate, there is nothing you can do."
All too typically, says Bourtis, a parent makes a half-hearted vow to change, but nothing happens. "Sometimes parents make a little bit of effort," she says, "and the kids get their hopes up and they get excited. 'I'm going home,' they think, 'and everything's going to be all right.'" Then the parents fall back into the same destructive pattern and, once again, the children are devastated.
Even if O'Connor's ruling is appealed and overturned, Bourtis says, it may do some good.
"I hope that it gets people thinking, and that if this isn't the answer, maybe it'll help us figure out what is," she sys.
Last week, Stephanie was the subject of yet another hearing.O'Connor was trying to consolidate everything that has resulted from the numerous hearings and petitions filed on behalf of each of Stephanie's four children.
As the hearing opened, O'Connor called to the bench all the law guardians and lawyers who had represented Stephanie or her children. Half a dozen people walked to the front of the courtroom. O'Connor assigned one lawyer from the Public Defender's office to represent Stephanie, and she assigned Bourtis as law guardian for all four children.
Neither Stephanie nor Rodney showed up at the hearing. And it was revealed that a bench warrant had been issued for Stephanie's arrest in connection with a parole violation. Stephanie also faces prostitution charges from an April incident in which she allegedly offered to service two undercover police officers for $10, according to news reports.
On May 25, Stephanie's case will be back in Family Court, to review an extension of the order that placed three of her children in the care of a relative.
Judge Marilyn O'Connor's ruling isn't the first time a judge has ordered a woman not to become pregnant.
In Montana in 1998, District Judge Dorothy McCarter ordered Dawn Marie Smith, a 29-year-old Helena woman, to not get pregnant for a period of 10 years or risk jail time. Smith was required to undergo pregnancy tests every two months.
Smith had earlier given birth to a baby who tested positive for amphetamines. McCarter initially gave her a three-year deferred sentence and required her to complete substance-abuse treatments. Smith failed to do so, and McCarter issued the pregnancy ban.
"I don't want another damaged baby born because we didn't do enough to supervise that woman. If she wants to drug herself to death, fine. But we can't have her taking drugs when she's pregnant," McCarter said in her ruling.
In her ruling, Judge Marilyn O'Connor did not impose any mandatory birth control, and instead left the decision to the parents.
"It is important to note that the court is not directing what steps the mother should take in order to not get pregnant, or what steps the father should take in order to not get any woman pregnant," O'Connor ruled.
She also wrote, in the decision, that the court would not order an abortion to rectify a pregnancy. The decision does, however, offer a state-funded medical solution:
"The respondents may even choose to be sterilized, the ultimate birth control method used by many adults once they have had all the children they wish to have. Such a procedure would be performed at no cost to the respondents," the judge ruled.