“Educational neglect”: When education bureaucrats and the family police team up to traumatize a family

Just reading about what Michelle Fraser had to do to get her son Jacob the special education services he needed and to which he was entitled under state and federal law is exhausting. To actually do what she did is a true testament to strength, resilience, and most of all a mother’s love for a son who is autistic, has epilepsy and is unable to speak. 

It happened year after year after year after year after year after year after year after year after year – every year from at least 2015 through 2023. The New York City public school system would deny Jabob the special education he needed and propose an alternative. Each year, Michelle Fraser would check out the school system’s proposed alternatives. One year, she even checked herself out of a hospital after major surgery to visit a school which, it turned out, didn’t have what Jacob needed – and didn’t have an opening for Jacob anyway. 

Each year, Fraser would appeal to an independent hearing officer. Each year, she would win her case. Jacob would get the education he needed to thrive.  Until the next school year, when it would start all over again. 

Apparently, this proved tiring for the school system, too.  But they had a secret weapon: The Administration for Children’s Services, New York City’s family police agency. They allegedly filed a blatantly false report. The allegation against the mother who fought so hard to get her child an education: educational neglect. 

But Fraser wouldn’t back down. Even in the face of the investigation, which traumatized the entire family, Fraser kept fighting. And now, she’s the plaintiff in a lawsuit brought by the Family Justice Law Center and two private law firms, Orrick, Herrington & Sutcliffe LLP, and Peter Romer-Friedman Law PLLC. 

Though Fraser is the named plaintiff, the lawsuit isn’t just about her case, because Fraser’s family is not the only one put through this hell. The lawsuit alleges that staff from the city’s Department of Education 

are reporting parents of students with disabilities in retaliation for their advocacy—to intimidate or coerce “difficult” parents into dropping their concerns about special education services or requests for placement in a different school. 

Even a former ACS attorney has said: 

 “If schools don’t get the parents to agree to what’s being recommended—not all the time, but sometimes—they will call ACS to pressure them.” 

And indeed, according to the lawsuit, in Fraser’s case, 

Defendants reported Plaintiff to the [New York State child abuse hotline], falsely and maliciously alleging that her son had not been attending school for years. Later, the reporter told an ACS caseworker that she had actually called the [hotline] because the “stalemate” with Plaintiff had “been going on too long” and her supervisor “wanted ACS involved.” 

This kind of behavior has been well documented for years in news accounts from, among others, The 74 and The Hechinger Report.  And not just in New York. The Hechinger Report stories document cases in Illinois as well as New York. Searchlight New Mexico documented the problem in that state. And the Boston Globe documented how such charges were used to harass families during the COVID pandemic - but not all families. 

Many states don’t even include “educational neglect” in the jurisdiction of their family police agencies. And, indeed, as far back as 2009, the respected Vera Institute of Justice said it should be drastically curbed, if not abolished, in New York as well. 

What is different now is that, thanks to the Family Justice Law Center and its partners, families can fight the entire regime of retaliation. 

What the lawsuit tells us about ACS 

Though ACS itself is not a defendant in the case, the lawsuit also reveals a lot about that agency’s failure, on several fronts. 

● First, ACS has refused to seek the state legislation that could have allowed it to refuse to be a party to DOE’s retaliation scheme. In New York, the state runs the child abuse hotline, but localities do the investigating. That creates a huge incentive for the state hotline to funnel b.s. reports on to the localities – making it someone else’s problem. 

One partial solution would be to allow localities to do their own screening, something that already happens for most cases in Pennsylvania, which has a similar system. 

But ACS has refused to ask the state for permission to do the same. Perhaps it just prefers to be able to pass the buck and say “the state made us do it” in cases like that of the Fraser family. 

● Second, ACS is fond of touting its version of “differential response” known as CARES. These cases supposedly get a kinder, gentler approach.  It’s not an investigation, they say, it’s just an “assessment.” 

When there’s a full-scale investigation, caseworkers ask children about the most intimate details of their lives, let everyone the family deals with know they’re under investigation for child abuse and search every room in their homes.

Let’s go back to the lawsuit Complaint to compare that to the Fraser case – which was assigned to the CARES track. 

Plaintiff received a call from her daughter, who was upset and said there was a strange man walking around outside their home. 

Plaintiff then discovered she had a voicemail from an ACS caseworker, Nikunj Patel. He was investigating a report that her son had not been attending school. 

Plaintiff immediately returned home with her son. Mr. Patel was still outside the house. Mr. Patel demanded to see every room in the house, including private outdoor areas where Plaintiff’s son liked to spend time as well as the bedrooms of both of Plaintiff’s children. He also said he needed to see the children’s medical records. 

The caseworker’s visit was very upsetting for Plaintiff’s son and caused him to cry in distress and retreat outside while the caseworker was in the home. 

Although this baseless ACS report concerned only Plaintiff’s son, the caseworker also interrogated her daughter, a competitive student athlete, with invasive questions about her family home, whether she felt undue parental pressure to engage in sports, and whether her mother ever yelled at her. 

After the visit, Plaintiff called the head of her daughter’s school, officials at the YMCA that hosts her son’s school program, and her children’s doctors to alert them that ACS may be contacting them, after the caseworker told her that he would be calling people who regularly interacted with the children. She felt embarrassed to have to tell people that she was being investigated for child neglect, and she experienced constant anxiety while the investigation remained pending. 

After a comprehensive investigation that included the home search and conversations with the children’s schools, doctors, and father, ACS found that no child abuse or neglect had taken place and raised no concerns about the children’s welfare. ACS closed the investigation. [Emphasis added.] 

Fraser’s daughter told the Daily News how it had all affected her: 

“I walked into school I think days later,” said Mia. “All I could think to myself was, I don’t want this to become a public thing. I don’t want my friends to know. I don’t want my teachers to know.” 

Years later, Mia, now 16, is more open about the experience — but she still thinks about the trauma that it caused. 

“I did mention it in one of my college essays,” she added. “One of my drafts was about the incident, and how all I could think about in the entirety of the situation was, what’s going to happen to my brother?” 

But hey, at least it was just an assessment and not an investigation, right? 

Still, the “assessment” did lead to one useful bit of information. Again, from the lawsuit complaint: 

During an initial call, the ACS caseworker asked the psychologist the reason for not reporting Plaintiff’s son’s absence from school until June 2023, if he had not been in school since 2016.

The caseworker documented the psychologist’s response: that Plaintiff “has taken legal action against DOE, she has constantly requested Re-evaluations, and Impartial hearing” and that Plaintiff has a legal background and “is very by the book, and strict in her speaking.” 

Another failure for the “training” panacea 

No matter how much harm family police do to families, no matter how egregious their behavior, they will insist everything can be fixed with “more training.” They’ve been saying that for decades, and during that time, the child welfare surveillance state has grown to its current massive proportions. 

Yet both ACS and DOE insist that the harm done to the Fraser family and so many others can be fixed with more training. Let’s return to the lawsuit complaint to see how that’s working out: 

Defendant DOE has acknowledged that educators have been overreporting to the [child abuse hotline]. Since the report against Plaintiff, DOE has begun work with ACS to develop a training module indicating that reports to ACS in retaliation for advocacy are unlawful and encouraging staff to check their biases and connect families with services. … 

OK, let’s just stop there. DOE says its employees need special training to know it’s against the law (not to mention morally wrong) to call in a child abuse report as an act of retaliation? Really? 

The training material also informs DOE employees that “Just because you disagree with a parent’s decisions or actions does not mean a child is being abused or maltreated.” And the new material reminds employees that there is an actual DOE regulation prohibiting retaliation. 

However, as the Complaint points out 

There is no evidence to indicate that the updated guidance and trainings have resulted in a decrease in retaliatory reports from educators against parents who advocate for services. Indeed, upon information and belief, some DOE employees have continued to retaliate against parents who advocate for their children with disabilities even after DOE began training staff in fall 2023 that “a call to the SCR is an option of last resort.” 

No, training isn’t going to do the job. But a hefty damage award in this lawsuit might.

Child welfare in New York: “Despicable” them.

That’s just one of the choice words appellate court justices applied to the behavior of the New York City family police agency during oral argument last week.

Imagine being 11 years old. You’ve moved with your brother and your mother to a new state to start a new life in a new school. Suddenly, armed sheriff’s deputies are marching through the halls, calling out your name. When they find you, all your new friends can see as they bring you to a semi-public place to interrogate you.  

Now imagine it’s Christmas morning. You’re at home celebrating, family are visiting. Suddenly the armed sheriff’s deputies are back, pounding on the door, loudly calling out that they’re there because there’s a child welfare agency case against your mother.  They demand entry, “observe” you and your brother and search the entire apartment, all in front of the guests. 

Of course, it’s all ok because a “child welfare” agency would only do this when parents are accused of beating or raping children, right?  Well, OK, maybe they’d also do it if parents were accused of starving children, or running a drug lab in a basement, right?  But they’d never, ever inflict so much trauma on children whose parents were accused of doing nothing to them at all – would they? 

Of course they would. It’s the sort of thing that happens all the time. But last week, in a scene that played out like the climax of a courtroom drama, one mid-level appellate court judge pledged that, at last, in one state, in at least one type of case, it will no longer be tolerated. She called the behavior of the agency in question, New York City’s Administration for Children’s Services (ACS), “despicable.”  

Said Presiding Justice Sallie Manzanet-Daniels: 

The issue here is that this woman has done nothing wrong, but she's being treated like a criminal, and her children are being retraumatized again and again. That's the issue here, and that's going to be put to a stop! 

You can see it all in the video above of oral argument in the case, known as Matter of Liam M. The argument starts at 2:22:22 in.  If you follow this link  it goes a little past that, to 2:38:00. That's the point where, at long last, an agency which normally is accountable to no one, finally is held to account for what it has done to so many children. 

Lawyers sometimes refer to judges who ask a lot of questions as a “hot bench.” This one was on fire. That requires some explanation. 

The context 

More than 20 years ago, a federal court barred ACS from tearing apart families and throwing children into foster care just because a parent, usually the mother, was herself a survivor of domestic violence. New York’s highest court, the Court of Appeals, effectively extended that statewide. (NCCPR’s Vice President, Carolyn Kubitschek, was co-counsel for the plaintiffs in that landmark case, which has been cited scores of times across the country in the intervening years.) 

Of course this didn’t stop the practice completely, but it curbed it. But the response from ACS could be summed up as: Oh yeah? Maybe we can’t take the kids, but we can still harass families with endless supervision and surveillance as much as we want! 

Two recent appellate court decisions stopped ACS from doing this at an early stage in the process. To which ACS effectively responded: Oh yeah? Maybe you can stop us early on, but we can still harass families with endless supervision and surveillance at later stages in the case! 

That brings us to the case argued last week. 

The facts of the case 

What might prompt such questioning from the justices? 

Here’s the backstory, as recounted in the brief for the mother, known as Ms. C., submitted by the Family Justice Law Center and the New York University School of Law (quotes in blue) and in oral argument, mostly from the Legal Aid Society, which represented not the mother, but the children (quotes in green). (And, lest there still be any question who really is on the side of protecting children here, they were supported, through amicus briefs, by, among others, Children’s Rights, Lawyers for Children, who do what the name implies, and the National Association of Counsel for Children.) 

The family is from Florida. They moved to New York to be close to the children’s grandmother, who was suffering from cancer. They moved to a New York home that the mother owned with her ex-husband. On one occasion, the ex got violent with her in front of the children. The mother did everything right, immediately calling the police and then getting all the court orders she needed to kick the father out of the house and keep him out. He followed those orders to the letter. 

The father consented to a finding of neglect against him. The mother was never charged with anything, and, indeed, ACS records repeatedly attest to the fact that she took excellent care of the children.  Eventually, she and the children moved back to Florida. So any supposed “threat” from the father was now 1,300 miles away. 

But through it all, ACS repeatedly demanded that the mother and the children be under their surveillance and control, and the Family Court repeatedly rubber-stamped those requests. The only grounds ever given for this surveillance: the father had not yet jumped through all the hoops in his case plan. 

Here’s what this did to the family: 

ACS monitored Ms. C.’s care of her children for more than five months, conducting numerous announced and unannounced searches of her home, from which the respondent father remained judicially barred. Caseworkers searched every room in the apartment during every home search. They even repeatedly inspected inside the refrigerator. 

I keep wondering: Did ACS think the father was hiding in the fridge?  

When ACS said, “Jump!” the family immediately had to say, “How high?” If they weren’t home when the caseworker was at the door, they had to drop everything and race back there – even when they were visiting their grandmother, sick with cancer. 

When the family moved back to Florida, things actually got worse. ACS went high-tech, demanding the right to virtually enter the home at any time and surveil every room (and, yes, the refrigerator again) by video. But that wasn’t enough for them. They recruited armed Florida sheriffs to inspect the family in person, and not just at home. As the children’s lawyer told the court, and the brief explains, one of the children 

was at school with her new schoolmates, and these unformed people with guns come, like, running into the school, calling out her name and saying they're there on behalf of ACS. They take her out of class. They interview her in a quasi-public space. Kids she wanted to be friends with saw. 

She began “shaking and crying with embarrassment and rage” and “yelling at the sheriffs to leave her alone.” 

She was so humiliated and mortified, her mother had to come to school to take her off campus. She couldn't even calm down. She was so upset. 

And after that, it was hard for her to even come back to school. But when she did come back … she started having problems that she had never had before. She started having behavioral problems. She started getting in fights. … 

She's finally doing better now, but it took a while. It took a really long time. 

And then, two months later, this happened: 

On Christmas morning, ACS sent armed sheriffs to Ms. C.’s apartment. In public outside the apartment building, the sheriffs loudly announced that they were there because of a children’s services case against Ms. C. and demanded to see her children. The sheriffs observed Liam and Sari and searched the apartment. Ms. C. had family over for the holiday and testified that the law enforcement search was “humiliating.”… 

Ms. C. felt “constantly threatened” that she would lose her children if she did not comply, a possibility that kept her awake at night. As she explained, “I [felt] like I left one abuser for another. …  ACS use[d] methods of control, including sending sheriffs to my apartment, to remind me that they’re in charge.” 

[The children] felt “watched and controlled” by ACS, and were “embarrassed and frightened” by sheriffs demanding to see them at school and at home … They implored the caseworker directly: “we don’t want to talk to you, don’t call us.” 

Even a family court judge overseeing the case said: 

“[I]t bothers me that ACS reached out to the Florida law enforcement authorities that put [Ms. C.] and her children through . . . these embarrassing ordeals.” 

But the judge let ACS keep on doing it anyway. 

Now, however, some appellate justices are making clear they’re not going to tolerate such “despicable” behavior.

NCCPR in the New York Daily News: Can ACS stand up to foster care panic?

 In 2011, Joette Katz stepped off the Connecticut Supreme Court to take a far more difficult job: running the state Department of Children and Families, Connecticut’s equivalent of the New York City Administration for Children’s Services. 

Within months, the death of a child “known-to-the-system” made headlines. As happened at least twice previously, there were calls to tear apart more families, and enormous pressure on Katz to tell her workers to do just that. In past years, her predecessors had caved. Katz did not. 

“I think in the past that’s been exactly the mistake, frankly,” Katz said at the time. “A child dies and the next thing you know workers are getting thrown under the bus and 500 children get removed [from their homes] the next day because it’s a reaction to a tragedy. I think that’s the exact wrong way to behave.” That’s why, at the time, I called Katz the gutsiest leader in child welfare. 

Now ACS Commissioner Jess Dannhauser will face the same pressure. Will he have the same kind of guts? Children’s lives may depend on it — literally. ...

Read the full column in the Daily News

Is this guy the most helpless “child welfare” leader in America? His own comments suggest the answer is yes.

New York City Administration for Children's Services
Commissioner Jess Dannhauser

UPDATE: SEE ACS'S RESPONSE AT THE END OF THIS POST

Poor Jess Dannhauser.  The head of New York City’s family police agency, the Administration for Children’s Services, says he’s really, truly concerned (though apparently not much more) about all those families and children traumatized by needless investigations and strip-searches resulting from all those false allegations, trivial cases or cases in which family poverty is confused with “neglect.”

But sheesh, all that whining!  Over and over again he offers the same response: It’s not my fault!  That mean old state government makes us do it!  And yet, Dannhauser ignored the obvious solution.  That should make us wonder if he really just wants to keep things as they are. 

The latest example to emerge from Dannhauser’s whine cellar is a letter to the editor in the New York Daily News.  That newspaper published an excellent commentary from the city’s family defense providers calling on the City Council and/or the State Legislature to pass a “Family Miranda” law – requiring ACS to tell families their rights.  Because if you don’t know your rights, you don’t have your rights. 

Dannhauser (or some flack in the ACS p.r. department) wrote a letter to the editor that regurgitated his standard excuse.  He writes: 

Anyone can make a report to New York State’s child abuse hotline. If a call about a New York City child is accepted by the state, the Administration for Children’s Services (ACS) is required by state law to respond to allegations and assess the safety of the child. ACS can’t choose which families to respond to but must, under law, respond to reports the state accepts. 

He continues: 

A Black child is seven times more likely than a white child to be in a report to the hotline. This is concerning. 

Let me interrupt here: just "concerning"? 

ACS can’t control calls made or reports accepted, 

Yes, you already said that. 

so we have been retraining mandated reporters on when to appropriately make a report and when, instead, they should connect the family to support. 

Because training is what you do when you don’t want to make real change. 

Here’s what Dannhauser never mentions.  Laws can be amended.  If he doesn’t want to be “required by state law” to do something, why doesn’t he go to the New York State Legislature and ask them to change the law? 

Perhaps if I say that more slowly ACS will understand: Ask. Them. To. Change. The. Law. 

Perhaps I need to say it louder: Ask. Them. To. Change. The. Law. 

The change would be simple: Authorize ACS and its county counterparts across the state to set up their own mechanisms to screen calls and decide if they need to be investigated. 

Of course, asking for such a change doesn’t mean he’ll get it.  But not asking guarantees he won’t.  So I figure there are three possible explanations: 

● It never occurred to him to ask.

● He’s asking but it’s top secret because he wants it to be a surprise and he hates spoilers.

● He likes things the way they are because they enable Maximum Feasible Buckpassing. 

I’m thinking it’s the third one. Because it so benefits both ACS and the state agency that runs the hotline, the Office of Children and Family Services.  That means it also benefits the mayor and the governor.  Here’s why: 

As things stand now, the state has an incentive to screen out fewer cases, since all those false reports become the localities’ problem.  The localities get to go full Dannhauser and say: It’s not our fault that we traumatized all these families with needless investigations and strip-searches, the state made us do it!  And both are in a position where it’s less likely they’ll wind up on the front page of the New York Post for wrongly screening something out.  In short, it works for everyone – except the children and families. 

Oh, and by the way: Nothing Dannhauser wrote in his letter is a reason not to pass family Miranda legislation.  On the contrary, if Dannhauser really believes that often his investigators shouldn’t be knocking on families’ doors at all, isn’t that more reason to make sure those families know their rights? 

The consequences were perfectly illustrated in a new report from the NYC Family Policy Project.  The report found that New York State screens out, proportionately, far fewer reports than the national average. 

As The Imprint reported: 

The report quotes several parents by first name. Cynthia said that as her CPS investigation dragged on, she couldn’t concentrate at work and eventually lost her job. Her 3-year-old daughter “was so nervous being interrogated by strangers so many times that she started behaving irregularly.” A mom identified as Ruth said she went through five years of “malicious calls,” leaving her anxious and depressed. 

“My daughter wet the bed for three years straight,” she stated. “There has to be some mechanism put in place so you’re not destroying families.” 

Among the report’s many great recommendations: 

“Enabling ACS and county agencies to have discretion to screen out reports” 

It’s not just Jess Dannhauser who needs to answer a question.  Reporters have published his don’t-blame-me-the-state-makes-us-do-it whine over and over.  Why has no reporter ever asked Dannhauser why Dannhauser doesn’t seem to have asked the Legislature to change the law?

UPDATE: I just had an interesting email exchange with an ACS flack:  Here it is, in full:

Kaufman, Marisa (ACS)	2:52 PM (6 minutes ago)

Hi Richard,

We saw your blog post today.  We are not asking you to make any changes.  We did want to be sure that you were aware that the Commissioner has asked for there to be a review and changes to the state laws related to the SCR. 

 

As an example, please see our testimony (attached) from the September 2023 Assembly hearing where at the top of page 4 he says, “ We believe that the State should conduct a full review and assessment of SCR practice and policies, as well as mandated reporter laws, and then take actions (legislative or otherwise) to address.”

 

In addition, in the Imprint article about the hearing it says:

 

At a public hearing last fall, the head of New York City’s children’s services agency, Jess Dannhauser, said state leaders should conduct a “full review and assessment” of the Statewide Central Register of Abuse and Maltreatment, including a potential overhaul of the relevant statutes.

“We cannot make sufficient progress within the current laws that were written over 50 years ago,” Dannhauser said.

Thanks,

Marisa Kaufman

ACS Division of External Affairs

AND HERE'S MY RESPONSE:

Richard Wexler	2:58 PM (3 minutes ago)
to Marisa

I am well aware of that.  Asking for "a full review and assessment" is like asking for "more study," which is another classic copout.  It is not the same thing as going to key legislative leaders and saying: Can you please introduce and pass a law that lets us screen reports.  Why won't you do that?

“ACS MADE IT CLEAR—EITHER I LET THEM SEARCH MY HOME OR THEY WERE TAKING MY KIDS.”

The New York City Administration for Children's Services Uses Highly Coercive Tactics to Illegally Search Tens of Thousands of Families’ Homes Every Year. 

I didn’t write the headline and subhead above.  Rather they are the headline and subhead that begin a lawsuit against New York City’s family police agency, the Administration for Children’s Services.  The lawsuit was filed by the Family Justice Law Center, the New York University School of Law Family Defense Clinic and two private firms. 

But unlike most legal documents, this one reads like a good magazine article.  So I’ve reprinted the overview that begins the lawsuit, known as a “preliminary statement” in full, except for footnotes and paragraph numbers.  If that whets your appetite for more, you can read the entire document here. 

You can read news accounts about the lawsuit in The New York Times, New York Daily News, NY1 News (a video interview), Gothamist, Mother Jones, The Imprint, Courthouse News Service, and Reason

  Ebony Gould, et. al., v. The City of New York, 
Preliminary Statement

             One night, without warning, a mother in New York City hears a knock on the door. Her children are home with her. The family is cooking. or playing, or sleeping. 

            When the mother opens the door, two government investigators are standing outside, loudly demanding to be let inside. She is surprised and confused. She asks what this is about. The investigators command the mother. You have to let us in.  We need to look in your home. 

            The mother has no choice, it seems. Terrified, she reluctantly opens the door and steps aside, and the investigators walk into her home. It is clear that there is no present danger to anyone in the home, but still the investigators search the home top to bottom. They look inside medicine cabinets, under beds, in closets and dresser drawers, in the refrigerator, and in cupboards.  The mother does not know why this is happening. The children are scared by these strangers combing through their home.  

              

The investigators demand to see the children's bodies under their clothes. They tell the mother to leave them alone in a room with her children. The investigators command the children. Lift up your shirt.  Pull down your pants.  I need to see your chest, your legs, your back. The children are afraid, but they comply. Their mother cannot protect them from these strangers. The mother fears that if she does not acquiesce to the investigators' demands, they will take her children at any moment. Her fear is reasonable; the investigators are telling her that might happen. 

            The investigators leave as abruptly as they arrived. They have threatened to return, even though they found no evidence that the children are in danger. There seem to be no rules and no laws to protect the mother and her children from this intrusion. 

            The City of New York’s Administration for Children's Services (”ACS”) conducts this kind of invasive and traumatic entry and search inside families’ homes more than 50,000 times a year. That means every day, well over 100 New York City families experience this harrowing violation. 

            As part of its routine investigations into families, ACS has a widespread custom, policy, and practice of entering and searching families’ homes by using coercive tactics (the "Coercive Tactics") to make parents feel that they have no choice but to allow caseworkers to enter and search their homes. For example, ACS caseworkers lie to parents about their rights, threaten to call the police, and even threaten to take the parents’ children away if the caseworkers are not permitted to enter and search the home. ACS conducts the overwhelming majority of these entries and searches without a court order, without voluntary consent, and in the absence of any emergency. 

            Duiring these searches, ACS routinely rummages through entire homes and conducts untrammeled inspections of families’ most private spaces. ACS performs these sprawling searches irrespective of whether these intimate spaces have any connection to whatever allegations have been made about that particular family. 

            These coerced searches rarely result in determinations that the children require any protection. Less than 7% of investigations lead ACS to file petitions in Family Court alleging that parents committed wrongdoing of any kind. 

            Nor do these coerced searches enhance child safety. As ACS has acknowledged, data from the first years of the COVID-19 pandemic show that there is no increase in child maltreatment when ACS drastically reduces the number of home entries and searches.            

            The trauma inflicted by ACS predominantly and disproportionately falls on Black and Hispanic families. More than 80% of the parents and children subjected to ACS investigations are Black or Hispanic. One out of every two Black children in New York City has been subjected to an ACS investigation by the time they reach the age of 18. ACS has acknowledged the racial impact of its investigations—an ACS-commissioned report describes a “predatory system that specifically targets Black and Brown parents.”

             ACS's widespread use of the Coercive Tactics to enter and search families’ homes violates the Fourth Amendment. There are three ways caseworkers may search a family’s home to conduct investigations consistent with the Fourth Amendment: (1 ) obtain a court order, (2) act upon exigent circumstances that require an immediate search of the home, or (3) obtain voluntary consent. Warrantless home searches like those ACS conducts tens of thousands of times a year are “presumptively unreasonable.” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks omitted). 

            Under the New York Family Court Act, ACS has the ability “at all hours” to obtain court orders to enter and search families’ homes. These orders must be supported by “probable cause” and “specify which action may be taken and by whom.” 

            ACS chooses to almost never seek these court orders. Across the nearly 53,000 investigations ACS conducted last year, it sought only 222 court orders to search families’ homes. Even assuming ACS completed only one home search during each investigation (it typically conducts several), ACS sought court orders for just 0.4% of home entries. This means over 99.5% of home searches that ACS conducts are 'presumptively unreasonable” under the Fourth Amendment. 

            ACS rarely attempts to justify its warrantless home searches by relying on exigent
circumstances. Of course, ACS can enter families’ homes without a court order or consent when it has grounds to believe a child is in imminent danger. But this case is not about the thankfully infrequent emergencies when warrantless searches are necessary to protect a child's safety. This case is about the overwhelming majority of ACS's more than 50,000 warrantless home searches every year—affecting more than 90,000 children and 70,000 caretakers—where no emergency grounds exist, even assuming the allegations under investigation are true. These allegations are typically non-urgent and frequently involve common occurrences, such as a child missing school without a doctor's note, a child seen playing in a hallway, or a parent disagreeing with a school's recommendation for special education services.

             In the absence of exigent circumstances, rather than seeking court orders, ACS caseworkers frequently gain entry into and search families’ homes through coercion, untruths, and threats. For instance, ACS caseworkers misrepresent and withhold information from parents about their rights, threaten to involve the police (i.e., government agents with the ability to use force), and even directly threaten to take parents' children away in order to improperly enter and search families’ homes. Caseworkers routinely employ these Coercive Tactics multiple times during the same investigation. 

            ACS's rampant use of the Coercive Tactics to conduct warrantless home searches is well known to Defendant City of New York. These practices have been meticulously documented by ACS's own internal reports, the agency’s staff and the informational materials ACS provides to parents, as well as by academics, reports and testimony of advocates and investigated parents, and in several prior lawsuits. 

            Nonetheless, ACS fails to provide anything close to adequate training to its caseworkers about families’ Fourth Amendment rights during home searches. Instead of ensuring that its staff follows the law, ACS has created and continues to foster a regime of coerced acquiescence by using tactics that inculcate fear in parents that unless they cede to ACS’s demands, their children will be taken. Indeed, an ACS internal report describes how the agency creates pernicious incentives for caseworkers to “be invasive and not tell parents their rights." 

            Plaintiffs are nine parents who were subjected to ACS's Coercive Tactics. These Coercive Tactics misled and intimidated Plaintiffs into believing they had no choice but to permit ACS's warrantless home entries and searches in non-exigent circumstances. ACS deployed an array of Coercive Tactics over the course of the numerous home searches experienced by Plaintiffs: ACS threatened to take Plaintiffs' children away if they did not let ACS into their homes; ACS threatened to call the police if Plaintiffs refused consent to entry; ACS told Plaintiffs the searches were required” or that ACS “needed” to search their homes; ACS abused and misrepresented its authority; ACS did not meaningfully inform Plaintiffs of their rights to refuse, limit, or revoke consent for ACS's home searches; and ACS made public scenes at Plaintiffs' front doors to intimidate Plaintiffs into letting them in. 

Plaintiff's’ experiences are not isolated or unusual. They are consistent with and indicative of ACS’s widespread and customary practice of deploying highly Coercive Tactics to conduct warrantless searches of families’ homes in non-exigent circumstances in violation of the Fourth Amendment. 

            Plaintiffs, on behalf of themselves and others similarly situated, bring this lawsuit to end these unconstitutional and unconscionable wrongs.

The two questions reporters covering child welfare in NYC should always ask

Even these two excellent stories leave two key questions unanswered - as almost always
happens when reporters write about family policing in New York

Brooklyn Defender Services has filed a lawsuit against the New York City family police agency, the Administration for Children’s Services, on behalf of a family that has been subjected to repeated, traumatic investigations as a result of false anonymous reports alleging child abuse. 

ProPublica broke the story. The Imprint also has an excellent account. 

The family has been harassed with false reports more than 24 times.  Over and over, ACS would show up at the home at all hours and pound on the door. At least once they were accompanied by police, guns drawn.  Here’s how ProPublica describes one encounter: 

It was 5:30 a.m. Flashlights beamed in through the windows of the ground-floor apartment in East Flatbush, Brooklyn. Police officers and child welfare caseworkers were ordering a woman to open her front door. 

When she did, the first thing she saw was that the police had their guns drawn. Her hands flew up into the “don’t shoot” position; she was well aware of the recent stories of cops “shooting first and asking later.” She prayed that her 7-year-old son was still asleep in his room. 

Or they’d interrogate the child at school.  As his mother told The Imprint: 

“I wasn’t able to protect him like a mother.  Especially when he had to come home and cry to me that the kids were teasing him, saying: ‘ACS are gonna come and take you.’ 

“I just felt like I failed him.”

Ultimately two different judges had to intervene to curb ACS’ harassment of the family.  One of them even ordered ACS to refer the matter to the Brooklyn District Attorney to investigate the caller – but, of course, since the calls were anonymous that won't be easy. 

How did ACS respond to media queries about the case?  By hauling out its standard playbook of lies and misdirection – the one that works almost every time. 

ACS’ outright lie 

For starters, there was their standard out-and-out lie. 

When ProPublica asked about the specifics of the case and the agency's response, ACS just ignored those questions.  But when The Imprint asked, out came the standard-issue lie: 

A spokesperson for New York City’s Administration for Children’s Services told The Imprint that her agency is unable to publicly discuss individual cases. 

They say that over and over and over.  And except for one New York Times story, no reporter ever seems to have checked to see if it’s true. 

It’s not. 

The failure to check is, in some ways, understandable.  Reporters are used to the extent to which various laws allow family police agencies to cover up the harm they do to families.  So they just assume it must always be true. 

But while it is true that family police agencies can’t comment on individual cases in most states,  it’s not true in New York. 

Nearly 30 years ago, New York State law was changed to specifically allow family police agencies to comment on individual cases under certain circumstances.  

This is a link to the law.  Have a look. 

Did you spot it?  It’s the part where it says circumstances in which family police agencies can comment include where 

there has been a prior knowing, voluntary, public disclosure by an individual concerning a report of child abuse or maltreatment in which such individual is named as the subject of the report … 

I’d say a case in which the accused is doing interviews and filed a civil lawsuit qualifies. 

This clause is included in a law commonly known as “Elisa’s Law,” after Elisa Izquierdo, a child known-to-the-system who died in 1995. 

So the first question any reporter in New York should ask whenever a family police agency claims it can’t comment is: “What about Elisa’s Law?” 

By the way, Arizona law is even more generous in allowing its state family police agency to comment, but that agency pulls the same stunt – and always gets away with it. 

As for other states: The laws that stop them from commenting were not handed down on tablets from Mount Sinai.  If family police agencies in these other states wanted the right to comment, they could persuade lawmakers to give it to them.  But, of course, they’d rather hide. 

ACS’ game of misdirection 

New York is one of 13 states in which local governments run family policing systems with some sort of state supervision.  The nature of this supervision varies, but in New York, the state runs the child abuse “hotline.”  If the state screens in a report – and the criteria for screening-in are extremely low – the local family police agency, in this case ACS, has to investigate. 

UPDATE: For this post about the need to ask more questions, I didn't ask enough questions.  Nora McCarthy, director of the New York City Family Policy Project, points out something I didn't know: ACS and its counterparts across the state have the right to ask the state hotline to reconsider any report it screens in. In fact, they're required to do this if they think the report doesn't meet the legal criteria for screening-in.  The hotline still has the ultimate authority.  It sure would be interesting to know how often ACS has exercised what amounts to right to appeal - if ever.

And sure enough, that was ACS’ copout here.  To read what ACS told The Imprint you’d think they were the real victims – dragged kicking and screaming by the state to gently knock on the door of this family.  So ACS passes the buck by saying: 

“The State should conduct a full review and assessment of [State hotline] practice and policies, as well as mandated reporter laws, and then take actions (legislative or otherwise) to address.” 

There are a couple of problems with this. The first is that, once you’ve investigated the same family over and over and found nothing, you don’t need to go in with guns drawn and otherwise make the process as traumatic as possible. For some reason, in this case it took two separate judges to explain this to ACS.  [UPDATE: In fact, once you know a family is being harassed this way you could appeal the hotline decision to keep screening-in these anonymous, harassing calls.] 

But also, notice what’s missing in the list of things ACS wants the state to do.  There is no request that the state simply allow ACS and its counterparts do to their own screening. 

That’s how it’s done in most cases in Pennsylvania.  The state runs the hotline, but for the overwhelming majority of calls, counties are allowed to do their own screening.  Decades ago, in New York, metropolitan Rochester and Syracuse did it all themselves, running their own hotlines. 

Why doesn’t ACS want the power to screen calls referred by the state hotline?  Probably because they like having no choice.  Because choices come with accountability.  The status quo is perfect for ACS.  They can do anything they want to tens of thousands of families and then pass the buck to the state.   But if they had screening power, they would be unambiguously responsible whenever they harass a family by investigating multiple false reports. 

But there’s another reason: If ACS had screening authority and it wrongly screened out a legitimate call and tragedy followed, they’d be the ones at the other end of headlines screaming “Who let this baby die?”  

Conversely, the state has an incentive to screen in all sorts of cases it shouldn’t because the burden will fall on the localities they overload with all those false reports.  But if the state hotline wrongly screens out a case then state officials are on the receiving end of those headlines. 

So the second question any reporter in New York should ask is the one they should ask when ACS (or its counterparts in the rest of the state) say: “The state made us do it”: Have you asked the Legislature to let you screen reports after the state passes them on? [UPDATE: And also: How often do you exercise your right to appeal a hotline decision to screen-in a call?]

The third question, of course, is: Why not?