Under the policy, which was updated in April of this year, caseworkers are expected to initiate the removal of a newborn from a home if that child has an older sibling already in foster care as a result of abuse or neglect. The caseworker can only push for the newborn to stay in the home under “extraordinary circumstances.”
“The policy is designed to ensure that a thorough, careful, complete and focused investigation is conducted to ensure that the newborn is safe, given the fact that when siblings are in foster care, there have been ACS findings (and Family Court has also ruled) that the home was unsafe and remains so,” Sharman Stein, director of communications for ACS, wrote in an e-mail.
But some attorneys involved in child protective cases say that the new policy violates the 2004 New York State Court of Appeals ruling in the case Nicholson v. Scopetta. The ruling said that a family court had to examine each removal of a child by ACS individually to determine whether the child is in danger, and whether the apparent danger is greater than the potential trauma that removing a child from a home may cause.
The genesis of the Nicholson decision was a class action lawsuit brought in 2001 by a group of battered women. The mothers charged that ACS was violating their rights by removing their children from the home because the mothers were being abused, not because the children were subject to abuse. The federal court imposed an injunction on the practice, ruling that removing a child from their mother because the mother was being battered was “in effect visiting upon them the sins of their mother's batterer."
The New York State Court of Appeals ruled in 2004 that each child removal had to be reviewed on an individual basis by a family court judge. The court also ruled that a child's witnessing abuse was not sufficient cause for removal from home. The women in the class action all received financial compensation from ACS in a Dec. 2004 settlement.
The key change in ACS policy came in April 2006. The presumption was that a caseworker would monitor any home with a newborn where the older siblings were in foster care. In extraordinary circumstances, the removal process would begin. But ACS updated its policy to change the presumption to removing a newborn if an older sibling was in foster care. The policy was tightened up this April, shortly after the death of Pablo Paez, an 11-week-old boy whose mother was charged with murder. Pablo’s mother, Kiana Perez, previously had a child taken from her and put into foster care. (The policy was clarified further this month, in language to be found here.)
“The assumption should be we are going for removal,” ACS Commissioner John Mattingly said, according to a May article in The New York Times. “This is a very serious matter, and only the highest authority can make a decision not to remove the child.”
The new policy flies in Nicholson's face, says David Lansner, a partner at Lansner & Kubitschek, the law firm which brought the original class action lawsuit that led to the decision. “I think this policy violates the law,” because it presumes an outcome rather than providing for a neutral hearing, said Lansner, who is also the co-chair of the New York State Citizen Review Panel for Child Protective Services in New York City, a voluntary organization of child protection professionals charged with reviewing policies and individual cases statewide.
ACS stands by its interpretation. The policy calls for individual assessments for each case with a caseworker and the caseworker’s supervisors, up to the level of ACS borough commissioner. Each case would then have to be brought to family court for a ruling before a child could be removed in a non-emergency situation. “We are required by law to assess the safety of every child in the home when we conduct an investigation,” Stein said. “If the siblings are still in care, the problems leading to the removal have not yet been ameliorated.”
Homes that were deemed to be unsafe for older siblings will now have to prove that they are safe, Stein said. Lansner said presuming that a second child would be abused because a sibling was is a “fallacy,” and the federal judge in the Nicholson case ruled that was not enough to remove a child.
Richard Wexler, executive director of the National Coalition for Child Protection Reform (NCCPR), said the starting point of the policy – that a newborn with an older sibling in foster care should be removed – is where the conflict with the lawsuit decision lies. “They begin with the presumption of guilt,” said Wexler, whose Alexandria, Va.-based organization generally advocates a very high bar for child removal. “Every one of these layers has to agree that it will be an exception that the child stays.”
Removing a child from the home, especially an infant, is traumatic for all involved, says Lansner. He cited studies that show a higher level of abuse for children in foster care than for those living with their families. Those same studies show that children in foster care do worse in school, are more likely to end up in jail and more likely to have substance abuse problems.
Lansner's law partner Carolyn Kubitschek is the vice president of the NCCPR. A clipping of a New York Times story about the Nicholson decision and settlement hangs framed in the firm’s lobby.
But NCCPR President Martin Guggenheim, a law professor at New York University – along with other advocates – disagrees that weighting the policy toward removing the child is necessarily illegal. Guggenheim says that because there are several layers of checks on each case, the policy does provide an appropriate level of review. “For that reason, I don’t agree with those who would say – who do say – that the new policy is plainly unlawful,” he said.
That doesn’t mean that Guggenheim is a fan of the updated policy. He said that ACS was putting “a thumb on the scale” of removing a child, which goes against established best practices in child protection.
Most courts, Guggenheim added, would wait to see the policy in action before listening to any challenges. The best option, if there was to be a legal challenge to change the policy, would be to file suit if newborns are wrongfully removed from their homes without any hearings.
So far, child welfare advocates have not pointed to any cases where the policy has removed children improperly. Mike Arsham of the East Harlem-based Child Welfare Organizing Project said that the cases his organization has investigated so far were “complicated,” and there were other circumstances that led to the removal of those newborns.
Arsham said that in general, there was a lot of good in the ACS policy, especially the level of scrutiny each case will get. But he said it was "troubling" to weight the policy to the side of removing a newborn except in extraordinary circumstances. "You don’t deprive newborns of the chance to bond with their mothers unless it’s absolutely necessary,” he said.
One other concern advocates have had is that the new policy will have a chilling effect on caseworkers. Few, if any, will be willing to take a chance on allowing newborns to stay with certain parents because they’ll fear for their jobs if anything happens to the child. “I am confident that this policy has sent a signal to line workers [to] be prepared to defend any recommendation to keep a child at home in a more visible way than we ordinarily require you to defend your choices. That is a signal,” Guggenheim said.
Faye Moore, president of the Social Service Employees Union Local 371, which represents child protection caseworkers, said that so far no union members had filed grievances saying that they received pressure to take actions that were not in the best interest of children.
Caseworkers, Moore said, have found ways within the terms of the policy to attempt to keep families together when they deemed it appropriate – even in cases where older siblings had been taken to foster care. Among the ways around it are stretching out investigations before they make decisions, she said. Attorney Lansner, on the other hand, said caseworkers often just ignored ACS policies.
But Moore says the new rule, especially with Mattingly publicly pronouncing it at a City Council budget hearing, has added to a climate of fear that already exists. "This particular commissioner is very reactionary when it comes to child protection," she claims. "There is an element of fear out there just with making a mistake. Period."
Other groups are taking a wait-and-see outlook with the new policy. Stephanie Gendell, the associate executive director for policy and public affairs at the Citizens Committee for Children of New York City, said that the ACS policy provided guidance for caseworkers to help them keep children safe, but in practice they need to recognize that each case is different.
“What is critical is that the ACS and foster care agency caseworkers assessing the family's circumstances understand that each family situation is different and requires individualized determinations,” Gendell said. “If the policy is being interpreted to eliminate that type of discretion that allows for decisions made on a case-by-case basis, then the language in the policy may need to be altered.”