Tuesday, February 27, 2024

“They’re not your children anymore.” Notes on news coverage of a landmark lawsuit

Yesterday’s post
was, in effect, a guest blog.  The Complaint filed by the Family Justice Law Center, the New York University School of Law Family Defense Clinic and two private law firms – especially the introductory section – reads like great journalism.  So I reprinted that part, in full.

Given its pitch-perfect portrayal of how the New York City Administration for Children’s Services treats children and families, it’s no wonder it generated at least nine ten 11 news stories, including: 

 The New York TimesNew York Daily NewsNY1 News (a video interview), WNYC Public Radio (an audio interview),  GothamistMother JonesThe ImprintCourthouse News Service, Scripps News, the New York Law Journal, and Reason 

Here’s a closer look at some of the coverage. 

The New York Times 

In what was, mostly, a very good storythe Times not only offered an excellent overview, it zeroed in on something it’s neglected before: how much what the lawsuit appropriately calls ACS’ “Coercive Tactics” harm the children ACS is supposed to protect. 

So the Times tells us that one plaintiff 

Ms. Gould, who is Black, said her family has been permanently affected by its experience with A.C.S. All three of her children are now in therapy.  She said one investigator asked her 6-year-old daughter if she was suicidal. Her daughter had not previously known the word. “From that day on, she started saying — when they would come — she felt suicidal.” 

Another couple told the Times that 

Their daughter, once outgoing and cheerful, has been in therapy … and blames herself for the investigations. Ms. Azar explained that her daughter, Y.A. … had been asked to write a story about the home investigations. In the story, Ms. Azar said, Y.A. had written, “I am a bad kid” and “I need to behave at school or Mommy and Daddy will be arrested.” 

Ms. Azar … said she often wondered while investigators were in her home, “What was happening with all the kids that actually needed your attention?” 

But old journalistic habits die hard.  In spite of all that, the Times couldn’t resist framing the issue the way family police agencies always want it framed, claiming that ACS 

has the difficult task of weighing the civil rights of families against the safety of children. 

Indeed, that’s the framing ACS used in its boilerplate statement in response to the suit. 

But really, New York Times?  How did what happened to Ms. Gould’s child make that child safer?  How is Y.A. safer?  And why didn’t that question Ms. Azar asked, “What was happening with all the kids that actually needed your attention?” make you wonder if inundating the system with false reports and poverty cases makes all children less safe? 

The Times then offers ACS a ready-made excuse: 

When tragedies happen, A.C.S. is frequently blamed for not having stepped in more aggressively. Those rare cases where children have died after investigators intervened minimally or not at all can make it difficult to dial back the agency’s powers. 

Blamed by whom?  Demagogic politicians, sure.  Bu for decades their false framing was amplified by media who minimized or ignored dissenting voices.  At worst, media are the ones who lead demands for agencies like ACS to “step[] in more aggressively.”  The Times is a lot better about this than it used to be – though it still hasn’t apologized for stoking groundless fears that COVID would cause a “pandemic of child abuse.”  Maybe if all journalists stopped doing things like that, it wouldn’t be quite so hard for agencies like ACS to do the right thing.  (Not that the fact that doing the right thing is hard is any excuse.) 

The Times also makes sure to convey ACS’ standard excuse that they have to investigate every report they receive from the state hotline.  But has any reporter for the Times or anywhere else ever asked ACS if it has sought a change in state law to allow it to screen out reports?  Or does ACS prefer a system that allows it to engage in maximum feasible buck-passing? 

The Brian Lehrer Show 

On WNYC Public Radio’s Brian Lehrer Show, David Shalleck-Klein of the Family Justice Law Center emphasized the point about who is hurt by this kind of family policing: 

ACS creates a false construction, which is they put child safety on one side of the ledger and families' rights on the other. That is false and it's actually dangerous for children because it fosters and perpetuates a culture of ACS using these invasive and distressing and degrading tactics. 

You can listen to the full interview with Shalleck-Klein and one of the plaintiffs, Shalonda Curtis-Hackett here: 


They also were interviewed on Inside City Hall on NY1. 

And for this story from Scripps News:

The Imprint 

UPDATE, March 5, 2024: Children's Rights has just brought some very good, constructive litigation.  I have a post about it here.

The Imprint also has a good story, one that avoids the trap the Times fell into.  Instead, the story quotes Prof. Dorothy Roberts, who explains: 

“A promising trend that this lawsuit is part of is recognizing that enforcing parents’ constitutional rights is critical to an approach to child welfare that truly benefits children. You cannot support children by terrorizing their families.” 

The Imprint story added some useful context – but not quite enough.  So the story rightly points out that

For decades, class-action lawsuits have been a major vehicle for reform in child welfare systems nationwide. But typically, they aim to fix poor conditions for children living in foster care. Legal experts say it is particularly rare for groups of parents, such as those in the Gould case, to seek systemic changes to the investigation and surveillance process, asserting their rights before a foster care removal. 

But then things get a little weird.  They quote one of the people most responsible for the fact that these suits have been so rare: Ira Lustbader, litigation director for the group that calls itself Children’s Rights.  For reasons discussed below, he gets the award for sheer chutzpah for this comment: 

“As with any landmark case like this, in an issue area that’s appropriately emerging as truly urgent, I think you’re going to see a lot of people take notice of this legal attack — and quite frankly because it’s deserved.  This is the time.” 

The story goes on to point out that 

The national nonprofit pioneered class-action lawsuits on behalf of foster children, and now has open litigation in more than 20 states on behalf of children poorly served by the government, including those in other systems, such as juvenile justice. 

What the story does not say is that not one of those suits, nor any other Children’s Rights has ever brought addresses the harm done by needless investigations and needless removals.  On the contrary, in state after state they’ve largely brought essentially the same old McLawsuit in an effort to “fix” foster care.  This almost never makes systems better, sometimes makes them worse and makes everything worse by distorting the entire national debate on “child welfare.”  Their approach to litigation is so awful that the foremost family defense attorney in Michigan, Prof. Vivek Sankaran, told the Detroit News the best thing Children’s Rights could do in that state, where it has a longstanding consent decree, is to get the hell out

The two people most responsible for failure after failure, year after year, are Ira Lustbader and his former boss, Marcia Lowry, who founded Children’s Rights, then left to form A Better Childhood, a group that brings McLawsuits that are as bad or worse. 

Year after year, over and over, they told us that a lawsuit like the one that these better lawyers just brought was impossible.  They claimed you can only sue for children already in the system. 

This was never true.  The settlements in R.C. v. Hormsby, which, for a while, successfully rebuilt the Alabama system to safely emphasize family preservation and Nicholson v. Scoppetta, which curbed the practice of taking children from survivors of domestic violence prove that. (NCCPR Board Members served as co-counsel for plaintiffs in both those suits.)  But while CR now does outstanding public policy work, its litigation is the same-old same-old.  

Of course, CR could argue that bringing a suit is no guarantee you will win.  But failing to bring a suit is a guarantee that you will lose. 

“Now is the time” for this better litigation, says Lustader.  Well, yes.  But last year also was the time.  And the year before.  And the year before that, going back decades.  But Ira and Marcia Lowery stood in the way.  All of which prompts one question: Since you say “now is the time,” Ira, and now that other lawyers have shown you how it’s done, when are you going to start bringing lawsuits like this? 

UPDATE: Turns out he has a pretty good answer.  Check out the update here.

Other stories 

Courthouse News Service  cited two other key passages from the lawsuit complaint.  During the course of one of many investigations, without any court hearing or any approval from a judge, Curtayasia Tayor said an ACS caseworker told her the children were  “no longer your children.”  Instead, she was told, they had become “clients of ACS to whom she could not talk without ACS’s permission.” 

The story also noted another part of the complaint, in which an ACS caseworker, cited in an internal ACS report, likened the two-month investigation process to “being stopped and frisked for sixty days.” 

● Still don’t think ACS workers should be called the family police?  Maybe that’s too kind.  In an interview with Gothamist, Shalleck-Klein points out that “ACS falls short of what even the NYPD is doing when searching New Yorkers’ homes.”

In the New York Law Journal, the founder of the Family Defense Clinic (and President of NCCPR) Prof.-emeritus Martin Guggenheim calls this litigation potentially 

one of the most important lawsuits in the field in the last fifty years.  This civil rights case is unprecedented and has the potential to end ACS’s widespread practice of engaging in lawless home invasions that terrorize parents and children.

● And Mother Jones explains that 

The indicators of poverty overlap with the indicators of neglect, putting poor families at greater risk. The system also allows abusive ex-partners to weaponize the hotline by making false reports.