NO-PREGNANCY ORDER VOIDED

Monroe Judge's Unprecedented Ruling in Error, Says Appeals Court

An appeals court has overturned a controversial, first-of-its-kind
ruling that ordered a homeless and drug-addicted Rochester couple to
have no more children.

The Appellate Division of state Supreme Court said Friday that Monroe
County Family Court Judge Marilyn L. O'Connor overstepped her bounds
in 2004 when she banned Stephanie Pendleton and Rodney Evers Sr. from
having more children until they could redeem the four they lost to foster care.

"We conclude that the court had no authority to prohibit (Pendleton)
from procreating," a five-judge panel of the appellate court said in
a written decision.

The order technically applies only to Pendleton because Evers did not
challenge O'Connor's ruling, the first decision of its kind in New York.

O'Connor couldn't be reached for comment. She steps down from the
bench at the end of the year because she has reached the mandatory
retirement age of 70.

Pendleton, now 38, also couldn't be reached for comment. Although she
once frequented the neighborhood around the House of Mercy on Hudson
Avenue, she hasn't been seen recently.

"Once this happened, she just kind of stayed away," said Sister Grace
Miller, a Roman Catholic nun who runs the shelter. "I felt badly over
that. If there are problems, people should be helped, not punished.
She needed help."

Miller said she agrees with the Appellate Division's ruling.

"To tell someone that she can't have children -- what kind of
decision is that?" Miller said. "Granted, you should be able to take
care of your own children, but I don't think an order should come
from a judge on whether or not you have children."

None of the lawyers who represented Pendleton and Evers, or their
children, could be reached for comment.

O'Connor ruled in March 2004 that Pendleton and Evers had neglected
their children -- three of whom tested positive for cocaine at birth
- -- and should have no more children until they showed they could take
care of them.

O'Connor's decision, which drew international attention, didn't order
the couple to be sterilized but directed them to seek family planning
services, as well as parenting counseling and treatment for drug addiction.

"All babies deserve more than to be born to parents who have proven
they cannot possibly raise or parent a child," O'Connor wrote. "This
neglected existence is an immense burden to place on a child and on society.

"The cycle of neglect often created by such births needs to stop. Our
society has reached the breaking point with respect to raising
neglected children, often born with extraordinary needs."

O'Connor's ruling drew fierce criticism from civil libertarians,
particularly the New York Civil Liberties Union, which filed a
friend-of-the-court brief in the appeal that said the ruling
effectively required Pendleton to abstain from sex, use birth control
or be sterilized.

"Such a requirement is unprecedented in the context of a child
neglect proceeding, and there should be no question that it is
impermissible, both as a matter of law and public policy," the ACLU's
brief said.

In the Appellate Division ruling, written by Associate Justice Robert
G. Hurlbutt, the court agreed that O'Connor's decision was
unprecedented and said she exceeded the power given to Family Court
by state law.

The appeals judges denied O'Connor's contention that her right to
declare a "no pregnancy" order is implied in a section of the law
that allows a judge to impose medical treatment.

The appeals court also said O'Connor erred when she refused to vacate
her ruling on the ground that Pendleton, who is referred to as the
"respondent" in the decision, didn't appear at a court proceeding.

"That was error," the appellate court said. "Regardless of whether
respondent willfully defaulted with respect to the hearing, an order
prohibiting respondent from conceiving a child is, insofar as our
research discloses, unprecedented in this state.

"Under such circumstances, the court should have granted respondent's
motion seeking to vacate the 'no pregnancy' condition of the order
and disposition and should have afforded respondent an opportunity to
be heard on that condition."

The appellate court's decision also could affect a later, similar
ruling by O'Connor in another case, which is under appeal.

The decision doesn't affect O'Connor's finding that the children were
neglected, nor a ruling that their parents should be stripped of
their parental rights.

All four of Pendleton's children are in new homes. The youngest, a
4-year-old girl, and her brothers, ages 6 and 7, are living with a
relative. Their 5-year-old brother was adopted.