Lawsuit Over ACS Practices

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Brian Lehrer: Brian Lehrer on WNYC. If the city of New York suspects a parent is engaging in child abuse or neglect, what are caseworkers allowed to do to investigate, and what investigation techniques might violate the rights of the parents and maybe not even be in the best interest of the child? That's the question at the heart of a new lawsuit filed against the city by a group called the Family Justice Law Center. It alleges that the city's Administration for Children's Services uses coercive and invasive tactics that violate the Fourth Amendment's reasonable search and seizure clause and leads to unnecessary trauma and family separation. The city denies the charge.

We will talk to one of the plaintiffs now and the plaintiff's lead attorney. The attorney is David Shalleck-Klein, founder of the Family Justice Law Center. The plaintiff is New York City parent Shalonda Curtis-Hackett. David and Shalonda, thanks very much for coming on. Welcome to WNYC.

David Shalleck-Klein: Thanks for having us, Brian.

Shalonda Curtis-Hackett: Thank you.

Brian Lehrer: David, everyone wants children protected from actual abuse or neglect. So with that as a given, want to take a minute or two and lay out the basics of your case?

David Shalleck-Klein: That's absolutely right. This case is all about making New York City a more just and more safe place for children, for parents, and for family units. Every year in New York City, the Administration for Children's Services, ACS, conducts over 50,000 investigations every year and in almost nearly every single one of these investigations, they conduct home searches and they frequently conduct strip searches of children.

The lawsuit alleges that the city ACS has a pervasive practice of using highly coercive tactics to gain entry into families' homes. They misrepresent their authority, they lie to parents about their rights, they threaten to bring the police to the home, and they even threaten to take parents' children away if the parents don't allow them into the home. Once the parents are under this threat of family separation, ACS caseworkers rummage through the entire home. They look under beds, they open refrigerators, they read labels in medicine cabinets, they open drawers, and they frequently ask children to lift up their shirt and pull down their pants.

These tactics, these investigation tactics that ACS uses create enormous harm for parents and for children. Parents are humiliated that they have to acquiesce to stranger's demands in their homes in front of their children. Children in turn are terrified and have to witness their parents kowtow to these scary strangers demanding that they disrobe and they're viewing their parents, their protective figures, unable to protect them in their own homes. This is harmful to, of course, then the family unit as well.

Although 93% of ACS investigations lead to no charges being filed, these investigations leave in their wake lasting harm for these families. That is what this lawsuit is all about, to get ACS to stop using these coercive tactics to enter family homes. Let me just say one thing, Brian. When ACS comes to a family home, those are government agents. There are three ways consistent with the Fourth Amendment that they can enter the home. Of course, if there's an emergency situation, they can enter and should be able to enter the home without a court order or without the voluntary consent.

The second way they can enter is with a court order. That is a family court judge saying that there's probable cause for them to enter. The third way that they can enter a family's home is through voluntary consent, which means not coerced consent. Every single year, ACS gets a court order in 0.5% of investigations, 0.5% of the 50,000 investigations, and that's only assuming one home search per investigation. There are frequently four or five or many times others.

ACS claims emergency circumstances in removing a child in 1.5% of investigations, which means that in over 95% of investigations, ACS is entering homes through what they say is caretakers' and parents' consents. What the plaintiffs' stories show and what the community has been saying for years now is that that consent is coerced through fear and through highly coercive tactics that make parents feel like they don't have a choice. Shalonda, one of our plaintiffs, had one of those experiences.

Brian Lehrer: Well, let me ask you one pushback question and then we'll invite Shalonda to tell why she joined this lawsuit as a plaintiff. Obviously, the city denies the charge. They say they're committed to keeping children safe and protecting parents' rights as well. Obviously, you disagree, but what motivation would the city agency, whose job it is to protect children, have to break up families unnecessarily?

David Shalleck-Klein: Let me push back a little bit to your pushback, which was ACS's pushback frequently, which is 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.

Of course, when there's an emergency, ACS needs to go into a home and protect a child, but when government agents, Brian, enter a family home, there's an ancient adage, every person's home is their castle. The Constitution was constructed in a way that disfavors government agents, particularly executive branch government agents, going into families' homes. In fact, it is presumptively unreasonable, meaning that it is presumptively illegal and unconstitutional for a government agent like an ACS caseworker to enter a family's home without a court order.

Brian Lehrer: You're making a constitutional argument. I'm asking you a motivation question. These are social workers. They're not even cops. They're social workers. What motivation would they have to mistreat families?

David Shalleck-Klein: Well, when you ask a lot of impacted families, they actually say that they feel like these ACS investigators are cops, that they are policing them in a distressing way where they're not actually protecting their child. Listen, at every single stage of the process, there's so much fear about what if something went wrong. Caseworkers feel an enormous amount of pressure. There was a leaked ACS report that showed that caseworkers felt incentivized to be intrusive and not tell parents their rights. ACS tried to hide this report, and it was unearthed and published in The New York Times.

Listen, it's easier to go into a family's home than to follow the Constitution. It is easier to threaten a parent to get into a home using these tactics rather than getting a court order, but let me say this, and I don't think a lot of caseworkers even know this. The legislature, the New York legislature created a very easy process, a very clear process for caseworkers to get judicial approval before going into homes.

The Family Court, the New York City Family Court, is required to be available at all hours of the day for ACS workers to make requests, either in writing or even by phone, to convince a judge that entering the home and doing these types of search tactics are required. What that does is it takes these incredibly critical decisions out of the unilateral hands of the executive branch of that caseworker and lets a family court judge assess whether doing these searches are required. The family court judges have to take into consideration, "Is it the least intrusive way? Is there actually probable cause? Who is the caller who's making this report?"

As the lawsuit shows, there's an enormous problem with anonymous callers, particularly in the domestic violence realm where abusers weaponize, and that is actually ACS's own words, the commissioner said that, abusers weaponize ACS by making anonymous false and malicious calls against mothers who were survivors of domestic violence as retaliation for them kicking them out of their home.

As just one example, Ms. Gould, who is the very first named plaintiff in our case, she's a survivor of terrible really traumatic domestic violence. Her abuser made repeated false and malicious calls against her, all of the investigations unfounded. Over the course of the last roughly four years, she and her children have undergone at least 35 home inspections by ACS workers. [unintelligible 00:10:19] 35 home inspections, and ACS each time entered her home not with an emergency, not with a court order, but by using tactics of fear, of threatening to take away her children, of threatening to take away the police. Once they were in the home, strip searching the children and humiliating the family.

Plaintiffs like Ms. Gould and Ms. Curtis-Hackett who were both Black, unfortunately, in New York City, it is not uncommon for this to happen. A Black child in New York City has a 50% chance of being subjected to an ACS investigation by the time they turn 18. That's shocking.

Brian Lehrer: This is WNYC-FM HD and AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are in New York and New Jersey Public Radio and live streaming at wnyc.org.

Coming right up to eleven o'clock, as we talk about the new lawsuit filed against the New York City Administration for Children's Services based on alleged coercive, invasive, unnecessary, and traumatizing searches with the lead attorney for the plaintiffs, David Shalleck-Klein, founder of The Family Justice Law Center, and one of the plaintiffs who we just mentioned, Shalonda Curtis-Hackett. Shalonda, thank you for your patience. David asked you to join this morning and you agreed. What would you like people to know about what you say happened in your case that led you to file suit?

Shalonda Curtis-Hackett: Yes, I would like people to know that this is not a benevolent agency that comes in under the guise of support and help. When they come to your home when they call you, you're accused, and you are framed as guilty, and you have to work your way and prove that you are not.

When they do come to your home, and they do gain access is not through some voluntary consent. I was threatened, I was threatened with the police, I was threatened at the height of COVID when there was obvious civil and social unrest with our New York City Police Department, so there was no way that I was going to heighten this investigation with adding the police to it, which my children didn't have any interactions with. I knew that it wasn't coming in a positive way, it was coming very negatively.

I want folks to understand that these cases, and these investigations as David said, 95% of the time are unfounded, that they're not coming in, in this helpful social work framework. That's not what it is. These are government agents, who come in, who accuse you based on the presumption of something happening, not with actual facts. As a parent, you are navigating this more often alone without the support of any legal support, which you have the availability in New York City to have that, and my rights weren't told to me and I had to navigate this, my family had to navigate this alone.

It was very scary, it was very scary to have this underlying threat of someone saying if you don't do the things that I want you to do, there's a high possibility that I will escalate and have your children removed. I've seen this in my community. I've seen decades of this happening, and people's children being removed and then working for months and years to get their children back and ACS just says, "Okay, here are your children back, okay, nothing really happened." I didn't want any of that to happen to my children. When she threatened me with the police, I had the option of the lesser of two evils which I thought would be letting her in.

Brian Lehrer: Were there consequences for you?

Shalonda Curtis-Hackett: The consequences of this, shaking up my life for two months, absolutely. Having to be available when they needed to come, having my children available and ask invasive questioning, going through my home, and also trying to suppress any emotion because I know that that is also weaponized against the parent. That any anger or upset or frustration with the process is that that gets written down as taking as a mental health problem and it could escalate far beyond what the allegation is. Once it was over and it is unfounded, unfortunately, there's nothing I can do if someone wants to call again. That's always a lingering possibility that I sit with every day as I do advocate, that I'm still unprotected.

Brian Lehrer: You want this due process that the suit asked for where they either need an emergency situation, a warrant from a court, or your consent in order to enter, correct?

Shalonda Curtis-Hackett: Absolutely, and telling people what their rights are from the first point of contact. Unfortunately, they don't tell you that. They don't tell you that you have a right to not let them in. You have a right to seek legal counsel and support. That was never told to me throughout the whole entire process. It's just like, we have rights, we should know what they are, and we should make the best decisions based on our families.

Again, as David said, if there's an emergency, they have the mechanisms to do that, and this was not an emergency. Unfortunately, myself, family members have all gone through this, and gone through the ringer with this without any support. They choose to not tell people that for those reasons.

Brian Lehrer: Notifying you of your rights is an important piece of this. I'm glad you mentioned it. I see there's a bill in the New York State Legislature that's called the Miranda Rights For Families, like when police arrest somebody, they tell them you have the right to remain silent, et cetera. Miranda Rights. You're saying that you hope the court even if the legislature doesn't do it, declares that there should be something like Miranda Rights for parents who are being investigated. They be informed of their rights at the point of investigation, correct?

Shalonda Curtis-Hackett: Absolutely. The state bill as well as the other bill in City Council as well for Miranda Rights being written and orally disseminated to people and especially in the languages that they speak is highly important because we all know you don't know your rights are being violated if you don't know your rights.

Even if the legislation [sound cut], it's going to take a while for people to put it in practice. Because they've had this culture for so long, and violating people's rights in coercive ways that it's not going to make that change right away, but it needs to happen and the courts need to uphold it. That when they do violate it, there's some recourse for families, as we push and do know your rights training for communities, that we're doing it on both ends.

Brian Lehrer: We have a few minutes for phone calls, listeners. Anyone want to help report this story or make an argument on either side of this lawsuit against the city's Administration for Children's Services. Are you a caseworker listening right now? Are you a parent who's ever been investigated by the city for abuse or neglect? Are you a teacher? I see a teacher who was calling in but couldn't wait to hang on. Teachers are what they called mandatory reporters, if they suspect one of their students is the victim of child abuse or neglect, they are required under the law to report it. Teachers or anyone else, 212-433-WNYC, 433-9692. Let's take a call from Kelly in Brooklyn, you're on WNYC. Hi, Kelly.

Kelly: Yes, I wanted to say I'm a psychologist who's often retained by the attorneys of birth families whose children have been in child protective custody. I wanted to speak to the fact that that initial reaction of the parent when the ACS is coming into the house can sometimes be used against them. The thing to bear in mind is that they're coming in the middle of the night, they're waking everybody up. It's a shock and awe terrifying moment. It's the same kind of compliance, absolute compliance that is expected of those parents that you see on the law enforcement side.

I've actually been in cases where I'm testifying, explaining the reaction of the parent at the point when ACS is coming in as a normal reaction to feeling threatened that your children are going to be taken from you. The other thing that's really, really important is that that manner of coming into the home is not effective in detecting abuse. The more severe, certain kinds of abuse, the harder it is to detect under those circumstances. A coercive, controlling, abusive parent is very savvy in those situations. The children know not to speak against a parent. Actually, what they're coming in, they're seeing poverty factors. They're coming into a home, a snapshot in the middle of the night, a bad reaction by the parents, and maybe the house is a mess. A coercive, controlling, abusive parent isn't even flagged in that process. I have seen and been a part of cases where there was severe coercive controlling abuse that was also physical abuse, multiple ACS investigations, but those kinds of abusers are very savvy. That whole process of trying to-

Brian Lehrer: On that side of it, Kelly, how can they do a better job of identifying the actual controlling parents who may present well to the investigators, I guess is what you're saying, in addition to not over-investigating people who are having an understandable emotional reaction to having their home crashed by the authorities?

Kelly: Well, this speaks very much to New York law and the policies, but my argument has always been that when parents are flagged, they have legal representation, but all of the psychological and mental health explanations are generated by the state. Legally, the state isn't going to pay for the parent to have a mental health expert on their side at the beginning talking about and offering a counter-narrative to the state's mental health characterization of the parents.

Brian Lehrer: Kelly, thank you for all that. I appreciate it. Let's get one more in here. Dana in Florida, formerly of the Bronx, I think was embroiled in a case involving her. Dana, you're on WNYC. Hello.

Dana: Hi. Thank you so much for having me. I want to answer the previous question as to why it is beneficial to ACS to conduct these investigations and let the world know that it's financial gains, that when children are removed, ACS makes money. The individual workers, when they remove children, they are compensated for it. That's the main reason why they do what they do. They often get money-

Brian Lehrer: Not like they get a bonus per child who's removed from a home. What do you mean compensated?

Dana: That's what we were told in the past, but they do get a bonus per child. Although it's money coming from the government, it's beneficial for them to find a case founded. In my case, I was a retired emergency medical technician who got injured on the job, and I had an abusive ex who I got rid of, and ACS stopped me.

We had six or seven cases. They even accused me of being on too much pain medication, which I find appalling because I was seeing a pain management doctor for the injuries I had and they tried to use that against me. When I went to visit, I had my child looked at at a child advocacy center to find out exactly what was happening. The ACS worker sat there, listened to the investigation, showed up in family court, and told the judge I was lying, and I was training my child to lie.

However, the report came back, and it was five pages long, and it spoke about all the abuse that my son went through, the things that he witnessed. He was being tied up, he was having tape put over his mouth, and still ACS did not charge him with anything. In fact, they offered supervised visits where he was continuously threatening my child. The ACS worker sat there with headphones on, bopping her head to music while he was intimidating my child during their visit.

Then when we left, ACS was not following their own guidelines when working with domestic violence. When we left, they would allow him to leave at the same time, and he would be waiting for us outside. I told the worker this was happening, and I was fearing for my life. I had already been in horrific situations with this man, which is why we both had orders of protection, myself and my child, and they were facilitating these visits and putting me in danger.

The ACS worker didn't care so I had to go outside and call the police and have them arrest the father because these visits were persistent and consistent with ACS. They didn't want to hear that my child said he hated his father, and he wished he was dead, and he was hurting him. They didn't care. They just kept facilitating more visits.

Brian Lehrer: Dana, thank you. I'm sorry that all that happened to you, but thank you for telling that story, shockingly, perhaps to some listeners. There are a couple of similar stories coming in that we're not going to have time to take. Shalonda, to your point too, that sometimes the parent who's actually taking care of a child comes under more suspicion than the parent who's not in the home anymore and was an abuser in the first place.

David, as we run out of time, I'm looking at a city government website on child fatalities in cases that were under investigation for abuse or neglect. This is from 2021, which is the most recent year I could find. It says, "This report reviews 53 child fatalities from calendar year 2021 that occurred in families that were known to ACS because of active involvement in an ACS investigation or services at the time of the fatality, or because of such involvement in the proceeding 10 years." My question is, in order to protect the rights of the parents and the way your lawsuit seeks, do you think there will be any sacrifice in terms of the number of child fatalities?

David Shalleck-Klein: The fatalities that happened are heartbreaking, they're devastating, and it's everybody's goal including ACS's to reduce the number of fatalities. I think the main danger in the way ACS conducts their investigation is that it's driven by the fear of these incredibly rare fatalities that happen. I think in that report, Brian, that you're referring to, it comes to 0.02% of investigations.

What's important for your viewers to understand is that of the 50,000 plus investigations every year, over 85% of them are for allegations of what's known as neglect, which as Shalonda described, is frequently confused with and conflated with poverty and not about abuse or abandonment, which are the cases that get frequently a lot of play. Going back to your earlier question, Brian, there was an unintended experiment that happened at the beginning years of COVID. It was one the silver lines-

Brian Lehrer: Hurry up. We have 30 seconds, just saying.

David Shalleck-Klein: I'll go quick. There was an amazing paper that came out by Melissa Friedman and Daniella Rohr at the Legal Aid Society of the Juvenile Rights Practice. What they showed is that during that time when there were fewer home searches and less government surveillance, children remained just as safe. ACS will never be a successful agency until the community that it's supposed to serve trusts it instead of fears it. This lawsuit will make the city safer and more just for children, for parents, and for families.

Brian Lehrer: David and Shalonda, thank you so much for coming on with us today.

David Shalleck-Klein: Thank you, Brian.

Shalonda Curtis-Hackett: Thank you.

 

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