“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 Times, New York Daily News, NY1 News (a video interview), WNYC Public Radio (an audio interview),  Gothamist, Mother Jones, The Imprint, Courthouse 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 story, the 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. 

“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.