Family Separations in Our Midst
NYC child welfare workers can remove children from their parents in emergencies. But they've wielded this power with growing frequency, and in cases that don’t seem like emergencies.
In November 2017, less than a week before Thanksgiving, Tonia Lovell picked up her toddler, Eliana, from daycare in the early evening and returned to the house where she was staying with her brother in Brooklyn.
The living situation was not ideal, and Lovell had tried twice to get into a family shelter in the Bronx. The city’s Department of Homeless Services rejected her application, likely because she did, in fact, have a roof over her head.
But while one city agency found her housing suitable enough to deny her shelter, another arm of city government was about to take her child away because of it. The city would use its authority to remove Eliana on the spot and without court approval — a power that is intended to be used only in emergencies.
Lovell and Eliana, who was 18-months old at the time, shared one room in the house, while her brother rented out others.
“I don't pay attention to who's in the house because my main focus is my daughter and me,” said Lovell.
That week before Thanksgiving, Lovell’s brother evicted a couple of the upstairs tenants. When they left, he found marijuana plants left behind along with ammunition. He called the police to deal with the contraband.
Within hours of the police leaving an employee from the Administration for Children’s Services came to the house. The employee, a child protective specialist, showed up in response to an anonymous report of child neglect.
The woman took a look around and saw a mess: trash, dirt, an empty kitchen and the smell of marijuana, according to a petition of child neglect later filed in family court.
“She’s asking me, ‘Don’t you see anything wrong with this place you’re living in?’” said Lovell, describing the interaction as confrontational from the beginning.
The report of child neglect did not even list Lovell or Eliana; instead, it listed her brother and his own children, who did not live there. Lovell and her attorney, Sophia Bernhardt, from Brooklyn Defender Services, think the anonymous report may have come from the disgruntled tenants.
The child protective specialist consulted with her supervisor and decided Lovell lacked good parental judgment for staying in the house with her child. They decided Eliana could not remain there, or in Lovell’s care.
It was Friday night, and family court was closed, so the city used its emergency powers. The child protective specialist scooped Eliana into her arms, and under the care of city government.
What the Law Says
When ACS employees believe that kids are unsafe at home, they may file a petition in family court to remove those children from the care of their parents or guardians. The law requires court oversight.
But the city has authority to remove a child on an emergency basis, when court is closed and when there is “imminent danger to the child’s life or health,” according to state law.
It is a power that should be the exception, advocates say, but is too often exerted in cases that aren’t emergencies.
Last year, of the 3,633 children removed from their parents, the city used emergency powers nearly half the time. Almost all of the children involved in these removals were non-white, reflecting a system that, by and large, only surveils black and brown families.
“There are times when it is necessary to remove a child from their home, and that is when the child is in such danger that they need to be removed,” said Emma Ketteringham, managing director of the Family Defense Practice at The Bronx Defenders.
“There is no doubt that we do need a state mechanism in place to ensure that children who are in that situation are kept safe. But what we have seen in the last couple of years is an increase in the exercise of the emergency removal power in cases where it is later determined not to be warranted,” she said.
When the city removes a child without any court process, Ketteringham said, the city bypasses protections afforded by due process, namely legal representation. Parents and children do not get access to an attorney until a case is filed in family court, unless they can afford to hire one.
“Unfortunately, the vast majority of families that ACS prosecutes in family court are poor,” said Jessica Marcus, a supervising attorney at Brooklyn Defender Services, the practice that would later represent Lovell in court. “So almost every parent who ends up in family court is eligible to be assigned a lawyer.”
Having legal representation means a chance to challenge the agency’s facts in the case, or work with the city to come up with a plan to keep children safe at home.
Plus, said Marcus, the weighty decision to separate a parent and child, which can create deep and devastating effects for a child and entire family, is not just in the hands of a city agency, which is what the law intends.
“The right to have a judge look at this decision is not just a parent's right,” Marcus said. “It's the children's right.”
The City’s Removal Numbers
In 2014, of the nearly 4,000 children removed from their parents, just over a third, 34 percent, were removed without a court order. The proportion of emergency removals, and the actual number of kids separated from their parents on a so-called emergency basis, increased over the next three years in a row, according to data provided by ACS.
In 2017, baby Eliana was one of 1,966 children separated from her parents on the spot, without a court order. That year, emergency removals comprised 48 percent of all children removed from their parents, a marked increase over 2014.
The overall number of children removed in 2018 declined from the previous year by a good amount, about 12 percent. But the proportion of children removed with emergency powers remained nearly stagnant, at 47 percent.
The racial disparities in these numbers are staggering. Of the children removed with emergency powers last year, only 5 percent were white, according to ACS figures. Black and Latino children made up 87 percent of emergency removals, and another 2 percent of children were Asian. Six percent of children were not identified with a racial group.
The city notes that the number of children removed from their parents makes up a small percentage of the approximately 60,000 abuse and neglect cases it must investigate each year. But after an initial investigation, well over half of these reports are found to have no credible evidence of abuse or neglect. (The city is required to investigate every report of child maltreatment forwarded by a state office.)
Though high-profile child deaths from abuse make the most headlines, and haunt the city, these cases are rare. The vast majority of investigations that the city handles, about 70 percent, relate to neglect, not abuse. And most of those neglect cases, advocates say, relate to issues of poverty — such as Lovell’s situation of inadequate housing.
New York City removes children far less frequently than other large cities, according to numbers from the National Coalition for Child Protection Reform. Indeed, ACS — in concept papers, public hearing testimony and op-eds — portrays itself as an agency that prioritizes helping parents, all while keeping children safe. The goal is to support and stabilize families, agency officials have said, and place children in foster care only when necessary.
“Ultimately, if we do have to make a removal decision, which is a very, very difficult call, it's done collaboratively and we exhaust all measures,” said Walid Ghaus, a child protective specialist with ACS. “And as a last resort, that's when the removal is executed.”
Ghaus and other agency employees stressed that decisions about removals are “never made in silo.” A child protective specialist in conjunction with a supervisor or other managers reviews the situation and makes a decision together.
But no matter how many ACS employees are involved in the process, the agency is not supposed to make the decision alone. So, advocates ask, why is the city taking children from their parents, without court oversight and the protections afforded by due process, almost half the time it is removing children?
The Disconnect Between Policy and Practice
ACS separated Cynthia from her two-week old baby, Maia, after the baby’s first stool, taken soon after delivery, tested positive for marijuana.
(Cynthia and Maia are not their real names. WNYC agreed to shield their identities because their case is pending.)
Months earlier, at a prenatal visit, Cynthia disclosed to her doctor that she smoked pot, but had stopped. Perhaps because of that history, the public hospital where Cynthia delivered decided to test her and the baby after the birth.
When the results came back two weeks later, Cynthia said Maia’s pediatrician agreed the baby was thriving. But the doctor told Cynthia that he needed to report Maia’s positive drug test.
It is against the policy of the city’s Health and Hospitals Corporation to report a case of child neglect solely based on a positive drug test, according to public hearing testimony from the organization’s chief medical officer (HHC does not make the policy available to the public, nor did it provide the policy when asked). State law stipulates that a parent’s “misuse” of drugs or alcohol must lead to an inability to care for the child to warrant a case for child neglect.
Cynthia said the pediatrician, with whom she has a good relationship, tried to allay her fears.
“He said, ‘It shouldn't really be a big deal, this kind of thing happens all the time. Somebody may not even come, they may just call you on the phone,’” Cynthia recalled.
But it was a big deal.
The next evening, a Friday night, a child protective specialist came to the Bronx family shelter where Cynthia and Maia were staying with Maia’s dad. The child protective specialist noted Cynthia’s prior case of child neglect, with two older children from years ago. It involved alcohol use, according to the court petition.
The city decided Maia could not remain in the care of her mother, and ACS used its emergency powers to force a separation.
The only evidence of potential neglect was the drug test, Cynthia said, and a positive test cannot serve as the basis for a case of child neglect, per city policy and state law.
Even with a prior case, she said, a removal — let alone one with emergency powers — felt extreme.
“I was, like, really scared,” Cynthia said. “I was amazed that they can even do that.”
But this was the Bronx. Last year, the lion’s share of emergency removals, 40 percent, happened in the borough.
Instead of removing the newborn to foster care, Cynthia agreed to leave the shelter so that Maia could remain with her father. Cynthia tried to explain feedings to Maia’s dad, who works six days a week and had not been alone with the baby that much. She then grabbed a bag and left. She didn’t have a place to go initially, so she rode the subway all night.
“And every time I would call him, I heard the baby screaming and screaming and he doesn't really know what to do,” she said. “It was horrible.”
At the court hearing on Monday, the judge rejected the removal order. He returned Cynthia back to the shelter, where she is closely under ACS’s watch until her case goes to trial this spring. The family courts immediately return children to their parents in 20 to 25 percent of emergency removals, according to ACS.
The agency does not discuss specific cases, so it is hard to know why it ordered a removal for Cynthia and Lovell’s children. But Ducoste Lamothe, an assistant commissioner at the agency, said the agency only conducts an emergency removal when there is imminent danger, as spelled out in state law.
“The removals that are done, they're done with the information we had at that point, that was clear that children were in imminent danger,” Lamothe said. “It doesn't mean a day later or three days later that circumstances have have not changed.”
Meaning parents may later be more willing to make a change at home, or share more information about a child’s health, he said.
But Marcus, the Brooklyn public defender, said an emergency removal rate of nearly 50 percent suggests the city is removing kids when it is not always an emergency. The practice is especially troubling given the trauma that can result from a child being taken from a parent — a harm that is almost exclusively imposed on families of color.
“It’s a fear that's being instilled in certain communities that somebody could come and remove your child,” said Marcus, adding, “I don't even tell my children exactly what I do because I don't think my young children should know that removal from your parents is a thing that can happen to a child.”
Punishing Families of Color
ACS has rolled out implicit bias training for staff members, like child protective specialists and their supervisors, most of whom are people of color. It's an attempt to acknowledge, and mitigate, the effects of a system focused almost exclusively on non-white families.
The problem is a national one, not just specific to New York.
There are implicitly higher standards for black or Hispanic moms, and particularly for those mothers who are poor, said Jessica Pryce, executive director of the Florida Institute for Child Welfare at Florida State University.
And the system is built to punish them when they don’t meet those standards, she said.
“I think systems are inept in a way that they don't understand systemic racism, and they don't understand that in many ways white supremacy is still the ruling principle when it comes to how we view parents,” Pryce said.
Systems often focus on the idea of child protection instead of family welfare, she said, sometimes at the expense of child well-being when kids are separated from their parents. Research has shown that children, even in homes where there is maltreatment, fare better when they remain with their parents and get support.
In New York City, mothers and advocates describe a system more set on finding fault with parents than serving families.
“Never do you see any of the strengths put forth in those petitions,” said Ketteringham, the Bronx public defender. “I've actually wondered — you know, if you're asking a court to make an honest assessment of whether a child is safe to remain home, why are they filing a document that just includes allegations and accusations?”
Manasha Mompoint, a Brooklyn mother of two girls, said an emergency removal based on an incident of corporal punishment took into account her worst moment of parenting, and nothing else.
Mompoint, whose family is from the Caribbean, said she grew up with corporal punishment, and did not see spanking as an outlier. Still, she says, she rarely spanked her own daughters.
But two years ago, Mompoint felt tested during a period when her older daughter, Denise, then age 9, struggled with behavioral issues. In a moment when she felt she needed to discipline Denise, Mompoint said she used a sandal to spank her on the arm. Mompoint said Denise was flailing, and the shoe's buckle hit her on the lip, leaving a welt. The court petition ACS filed said Denise’s lip was swollen and bleeding.
Corporal punishment isn’t banned by the city, but ACS considers it a form of child neglect when it is used in excess, resulting in “physical or emotional harm of a child.”
Denise’s school called the state hotline of child abuse and neglect. Mompoint was questioned by police, who did not find cause to charge her with child abuse. But later, two child protective specialists came to the house.
“One lady was very calm,” said Mompoint, “and the other lady — it was like she was looking for something.”
The agency workers were not confident the girls were safe at home, so they conducted an emergency removal of both children. In this case, Mompoint’s daughters were able to stay with their godmother. The agency says it prioritizes putting children with family or other known adults, to minimize trauma.
A judge returned the children home within days, with continued visits by ACS, after Denise was crying for her mother. Mompoint says they still talk about it.
“Denise was like, ‘Mommy, I never want to go through that — no, no, no,” Mompoint said.
The court ordered therapy for Denise, but Mompoint said ACS never followed up. She had to call the agency.
“In a month and half, never came to the house,” said Mompoint. “I didn’t get one visit, nothing. For a case that was so severe — what happened?”
Cynthia, whose case with baby Maia is ongoing, said she feels that parents have to constantly prove that they deserve their children; turning down any services or surveillance by the agency means that you are not fighting hard enough to keep your kids.
“Instead of trying to help the parents, they always trying to police them and nitpick with them,” Cynthia said. “It's like they want to play God.”
Cynthia undergoes routine drug testing. ACS has also asked her to undergo alcohol testing and a mental health evaluation. She turned down early intervention services for Maia, after consulting with the pediatrician who thought those services for a healthy newborn were needless.
Baby Eliana Goes Home
After Eliana was separated from her mother in Brooklyn, she went from the arms of the child protective specialist, to a temporary residence for children waiting for foster care placement, to a foster home — all over the course of one weekend.
At the first hearing in family court, the city continued to argue that Lovell showed poor parental judgment, and that Eliana should stay in foster care. According to a hearing transcript, the city’s arguments centered on the idea that Lovell did not adequately express desperation about her living situation when ACS came knocking on her door.
But Judge Erik Pitchal could not find evidence to support that Eliana was in imminent danger, the true issue at hand when determining whether an emergency removal is warranted.
He immediately returned Eliana to her mother’s care and ordered ACS to help the mother and daughter get into shelter.
According to the judge’s release order, he acknowledged that Eliana was exposed to “squalid” living conditions. But the judge wrote that Lovell “had no other choice,” since she had tried to get into shelter.
“The harm of removal is not insubstantial,” the judge wrote, “as the child is 18 months old and has lived her entire life with her mother.”
ACS’s investigation into child neglect continued, and Lovell remained under the agency’s supervision until her case was dismissed eight months later.