Soon after Amber Wilkes-Smith’s niece was born, she was placed in foster care in Buffalo, New York. Amber was not notified by the child welfare system, in violation of her family’s rights and child welfare requirements. By the time she found out her niece was in care, her sister’s parental rights had been terminated. Amber filed a petition through the court to try to get custody. When her petition was denied, she appealed the decision. Although Amber lost the appeal, she is sharing her experience to raise awareness of these issues, help other families and push for change.

Here, Amber and Michael Steinberg, Amber’s lawyer in the appeal, explain the appeal process. They discuss violations of parents’ and families’ legal rights and systemic injustice in the child welfare and family court systems.

Q. How did you find out that your niece was in foster care?

Amber Wilkes-Smith: My sister lost custody of her daughter soon after she was born. She contacted me from prison when her daughter was 3 years old, telling me her daughter was in foster care and that she wanted me to try to get custody. Her parental rights had been terminated and she was in the process of appealing. I reached out to the Department of Social Services (DSS) in August of 2018. For months they didn’t return my phone calls and wouldn’t confirm that my niece was in foster care. In November 2018, someone finally told me she was in foster care and said, “You need to go to court.” That December, I filed a petition.

Q. Why didn’t the child welfare agency let your family know your niece was in care or help you to become a kinship caregiver?

Wilkes-Smith: The social worker did contact our older sister, but from what I understand, they never notified her of her rights. A few years earlier, my older sister had adopted our younger sister’s first child who went into foster care. Sometimes, there is a lot of anger when you don’t have your child, so they had a contentious relationship. My younger sister did not want my older sister to know what was happening. They did notify my older sister that our niece was in care, but they should have told her the steps she needed to take if she wanted to get custody, foster, or adopt our niece. They are supposed to provide a formal written document. They did not do that. They led her to believe that she could get custody when parental rights were terminated, when actually, once parental rights are terminated, your rights as a relative are severely diminished.

My older sister asked for sibling visitation. It’s in the CPS file. DSS said they were going to set it up. But every time my older sister called or went to Buffalo, they wouldn’t return her phone calls or arrange it. Foster parents have a duty to foster a child’s bonds with their family, but for some reason, DSS exempted the foster family from that duty.

They had my name on record because I had visited my first niece who was in care and had supported my younger sister. I met the social workers at the time. But when my younger niece went into care, they never contacted me or explained why they didn’t contact me. Instead, they went before the court and said they had never heard of me and didn’t know where I was. To this day, I don’t understand why they did what they did. It really seemed they wanted the foster parents to keep my niece.

Q. What legal rights were violated? What requirements did the child welfare system fail to meet?

Michael Steinberg: There is a very firm structure set up that is premised on balancing two things. One is that in situations when parents can’t care for a child, it is best for children to stay in the extended family. The other is that children need to be placed if the parent is not going to be able to care for them. There is a small window of time under New York State law when DSS is supposed to reach out and find family members who possibly could care for the child. They are supposed to give the family members all the information they need to exercise their rights. They have to show the court that they’ve done that.

They didn’t do that in this case. It has not been determined by the court that they didn’t do it, because, at the stage we were at procedurally, the court did not try these issues and there was never any testimony. However, DSS never looked for Amber. They are required to look for her. They had information on file. They could have easily found her. They didn’t do what they were required to when she could have acted. They went ahead and terminated the mother’s rights and placed the child in foster care, moving toward adoption. It is clear from their emails that that was their plan from the beginning.

Then, when Amber found out about this later, their position was, “Well, it is too late. You only have this short period of time when you have extra rights. Now you have to show that the best interest of the child calls for a change to living with you. You can’t show that.”

We said, “You can’t benefit from your own failure to follow the rules.” When it came up to the appellate division, they kind of punted. The appellate court threw it out, saying, “Amber should have moved for adoption, not just for custody.” Well, nobody had said that before. If they had said it at trial level, the court could have heard her say, “I want to adopt.” She was not given the advice to adopt. In fact, she did say in court that she wanted the child to be hers, which certainly means adoption and not simply foster care.

The appellate court didn’t want to handle it. I think one of the reasons was that they didn’t want to face the fact that DSS has messed up. The court didn’t want to answer the question, “What are a family member’s rights when DSS has messed up and cost someone like Amber that opportunity?” They wouldn’t hear that case.

Q. How does the appeal process work?

Steinberg: The appeal we did is an “appeal by right.” Everybody has a right to appeal to the intermediate level appellate court. This is pretty much the end of the line, because the highest court in New York, the NY State Court of Appeals, takes very few cases.

The appellate court is a panel of five judges. New York has 4 appellate divisions. They review what happened in a lower court, for example family court, and they are limited to deciding if the lower court did it right. They can’t hear any new evidence. They are limited to what was presented to the judge. The inquiry is a narrow one: “Did the judge make a mistake?”

Our argument was that the judge did make a mistake because there is a right that was lost here that was ignored. It is the right of the family member and the right of the child. The child has a right to be raised in the extended family.

The court was unwilling to look at the rights that were lost. They threw it out and said we asked for the wrong thing. Since no one raised the issue of adoption in family court, they really weren’t supposed to be able to raise it for the first time in appellate court, yet that was what they focused on.

Courts, like social service departments, have a picture of the ways things should be in their heads. They will cut some corners in order to make sure things stick with the way they think things should be. I think that is what happened here. It’s also what happened with social services. Social services departments have an idea of what a family should be, and what a child’s situation should be, and they will ram that through no matter what. 

Q. What are the steps in the appeal process?

Steinberg: What you do is you get all the papers and transcripts from the proceeding in family court. Those documents make up what is called ‘the record on appeal’. You negotiate with the other side because everyone has to agree on what is in the record on appeal. You put the record together. The record gets printed and you accompany it with a brief which is telling the story — you go through what happened with references to the record. You can’t include anything that is outside the record. Then you make your legal argument with reference to statutes and prior cases. That gets submitted to the court and a copy goes to the other side. They provide a response. You do a reply brief. Then you wait. Finally you argue it in front of the court. Then you wait again. Then they issue a written decision. It is a long process.

Wilkes-Smith: We started the appeal process in the summer or early fall of 2019 and received the decision in July 2020.

Steinberg: You only have 30 days to tell the court you want to appeal. Then you have 6-9 months to do the appeal. Then you wait on the court.

Q. What advice would you have for other family members going through this process?

Wilkes-Smith: As soon as you find out you have a relative in care, get an attorney, if possible. Unfortunately, that is not easy for a lot of people. It wasn’t easy for my family because it is expensive. But I’m not an attorney, so I didn’t understand the processes. I called the court and asked what kind of petition is best. I trusted their guidance. Even when I did have an attorney, no one said, “This is the wrong petition.” Their argument in court was, “We never heard of you and couldn’t find you.” No one said it was the wrong petition, so it is a shock that that is what the appellate court decided.

Get an attorney. Try to know your rights. I don’t think anyone should rely on DSS. You should be able to, but you can’t.

While I was going through all of this, I filed a complaint with the OCFS regional office. That got nowhere. I reached out to the Albany office and that also got nowhere. I reached out to the Governor’s office and the Comptroller’s office. They forwarded my communications back to the Albany office, who said, “We have received numerous complaints and it has been looked at by several departments. This is a matter for family court.”

So, try to do everything you can. Exhaust every avenue. Unfortunately, in my case it wasn’t helpful. I’m hoping the media, including your publication, exposes and brings attention to these issues so something can be done to help the next family. 

Q. Do you see your niece?

Wilkes-Smith: I’ve never met my niece. During the family court and appeal process, they wouldn’t allow me to contact my niece. Then DSS said, “You have never even met her.” I didn’t meet her, I haven’t spoken to her, because they wouldn’t allow me to, not because I didn’t want to. Then they held that against me. 

It hurts. I was in foster care as a child. I was adopted later on, so I understand wanting to know where you come from and the importance of family bonds. In my niece’s situation, it is even more pronounced because her foster parents are white. She knows she is different and she knows she came from somewhere else, but unfortunately, she may not know where that is. No one is going to tell her. To add insult to injury, they changed her name before she was even adopted. So the one thing her mother gave her besides her life — they took that, too. It really hurts.

Q. You didn’t have high hopes of winning. Why was it important to appeal?

Wilkes-Smith: It was important because you hope that you can right the wrong. When we started this process, we knew it was a long shot. I hoped for the best but kind of planned for the worst, because when has the judicial system in America worked for disenfranchised populations, specifically people of color and those who aren’t financially well off? Justice primarily works for those who are connected to people who wield power and for those who can afford it. Just because a judge renders a certain decision does not mean it is just. Historically and to this present day, courts in this country have upheld laws and rulings that were unjust and morally wrong. 

Still, it was important to appeal on principle. A wrong happened. It needs to be rectified. It needs to be righted. We had to see it through for my niece, my sister, our family. We had to do as much as we could, so my niece knows we wanted and tried to keep her in our family. She will probably grow up thinking, “Where is my family? Did they not want me?” That’s not the truth at all and one day she will be able to see that we fought for her as best we could.

Steinberg: As a lawyer, my feeling has always been that the appeal process is the only institutional way of trying to make sure that judges, like the family court judge, follow the law. We didn’t succeed this time, but I think it was worth it. I hope you think so, too, Amber.

Wilkes-Smith: I agree.  

Q: Did DSS ask your sister who she wanted to care for her child? When your sister was incarcerated, did DSS respect her right to stay connected to her child?

Wilkes-Smith: My younger sister told DSS about a cousin in Buffalo. They did not reach out to that cousin. She told me she gave them my name. They said no, she did not. Because I never had a hearing, I didn’t get access to the full case file and records to see what happened.

From what I understand, when my niece was born, a nurse said, “Come get the child. We think the mother is going to harm her.” She wasn’t arrested, so whatever happened in the hospital wasn’t criminal. She had a Caesarean section and the medications are strong. I don’t know if she had post-partum depression. Even if she did, was that enough to take her child from day one because she said something? I don’t know what was said. It doesn’t say in the record.

She got out of the hospital and DSS said that she wasn’t visiting the child as much as they wanted. Imagine having a C-section and getting out of the hospital. You need weeks to heal. Your child is not with you. They wanted her to go to drug counseling even though she didn’t use drugs. They make her take all these classes, but didn’t help with her real needs. She didn’t have a car or a job. The foster family lived in the suburbs. They made it very difficult for her to establish a bond.

Then she was incarcerated. When she was incarcerated, even before her parental rights were terminated, they didn’t let her have any contact with her child — no pictures, no visits, nothing. I confirmed that with the prison caseworker. They took advantage of her. Once she was incarcerated, they totally ignored her and moved to terminate her parental rights (TPR). To me it is a court-sanctioned kidnapping. 

I reached out to DSS when she was appealing the TPR. When DSS went to court to terminate my incarcerated sister’s parental rights, they stated on the record that they had reached out to my older sister, but that they were not aware of any other relatives. DSS knew that I had reached out, so that was a lie and they got away with it.

Steinberg: They really had a plan from the beginning and weren’t going to let anything or anyone stand in the way.

Q. The failure to contact family members and document case details is a systemic problem. Can you tell us more about that?

Wilkes-Smith: The NY Comptroller did an audit that basically said the same thing I said about DSS: Their records are inaccurate and incomplete. Social workers and attorneys are presenting these records to judges and judges are making decisions based on those files. It is not right.

Now the question is, what are they going to do? OCFS did not have a constructive response — it was deny, deny, deny. There was nothing positive in the audit, but OCFS doesn’t seem to think anything is wrong.

Steinberg: On top of the institutional god-playing way these agencies often operate, they are understaffed and underfunded. Even if they wanted to do good work and find families quickly, their caseloads are so great, they are probably unable to do that. It becomes easier to say, “We know what to do, let’s do that.” I’m not trying to let them off the hook, but we don’t give them the resources to do what we want them to do.

Wilkes-Smith: And why do they have a huge caseload? They create the problem because they take children who don’t need to be in foster care. Poverty shouldn’t be a reason you lose your child. Give families resources.

There should be an intermediary to review the situation before it gets to that level. My niece didn’t have to be in foster care. She could have been with her family. Why create a case they had to monitor for five years? They created that unnecessary burden. How many other children are in foster care and don’t need to be?

Read Amber’s story: ‘I was denied the right to keep my family intact’