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In a ruling that could spark a dramatic shift in how New York City’s child welfare agency deals with children whose parents are suspected of abuse or neglect, a federal appeals court ruled last week that the city violated a family’s constitutional rights when caseworkers abruptly pulled a 5-year-old girl out of school for a gynecological examination without first seeking a court order. The ruling is a rebuke to the city’s longstanding practice of removing children from their parents first and asking judges for permission later.

“Child welfare caseworkers can no longer go and remove children from homes based on their own opinion that the kids should be out of the home,” said Carolyn Kubitschek, the attorney who filed the suit. “They have to rely on a judge to make that decision.”

The case, Tenenbaum v. Williams, followed from a 1990 incident in which caseworkers pulled Brooklyn kindergartner Sarah Tenenbaum out of school in the middle of the day and took her to Coney Island Hospital. Her teacher had been worried that the girl’s father was sexually abusing her. Although caseworkers had interviewed her parents at home the week before, inspecting Sarah and her brother for bruises, they never told the parents they were suspected of abuse. It wasn’t until Sarah’s father was called into school while she being examined that he was told of the probe. Ultimately, caseworkers found no evidence of sex abuse.

This Second Circuit appellate panel decision upheld an earlier ruling that the unauthorized medical exam violated the Tenenbaums’ constitutional rights, and went further, ruling that the caseworker should have gone to a judge first.

Under New York State law, a child can be removed on an “emergency” basis-without a court order-if she seems to be in imminent danger. But that “emergency” practice has become routine in New York City’s anarchic child welfare system, in which it’s estimated that as many as 85 percent of cases start with “emergency” removals. Under those circumstances, a child can remain in city custody for several days before a judge has an opportunity to first hear the case–and before parents have a chance to air their side of the story. In the Tenenbaum case, city lawyers admitted to the court that removing children without judges’ orders is routine city policy.

Longtime parent lawyer Marlene Halpern of the Legal Aid Society said that child welfare workers elsewhere in New York State usually ask for judges’ permission prior to removals. “[But] in New York City it’s the opposite,” she said. “The worker makes the determination. It doesn’t matter if it’s day or night, at school or a hospital.”

The court chastised the city for abusing the emergency exception, writing that “there is a critical difference between necessary latitude and infinite license.” In effect, the appellate court has for the first time put the city on notice that it the only acceptable “emergencies” are genuine emergencies.

While the ruling does not automatically change Administration for Children’s Services practices, it puts the agency under the threat of costly lawsuits from families alleging violations of their constitutional rights. Kubitschek said she is already prepared to file suit on behalf of several families whose children were unjustifiably removed, without court orders.

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