That issue became the focus of discussion last year when New York State’s chief judge, Janet DiFiore, established a Commission on Parental Representation in February 2018, shortly after executives in Monroe County turned down a $2.6 million grant to strengthen parent representation in that county. Part of that grant would have provided indigent parents counsel during an investigation and put Monroe County at the cutting edge of parent representation.
A memo released this November by the federal Children’s Bureau recommended early access to counsel as one way systems could avoid “unnecessary parent-child separation,” but to date, across the country, access to counsel during a CPS investigation is almost non-existent.
It was raised again in New York City in November, when the City Council held a hearing on parent-child separations through foster care, Council members asked ACS officials pointed questions about access to legal counsel during an investigation, and lawyers and parent advocates testified about the need for it.
When Monroe County turned down the grant, it had recently experienced several horrifying child deaths, as well as extensive reporting on the failures of the county’s overburdened child protective system. There wasn’t much political will to protect parents, even if it came at no cost to the county. “Monroe County CPS workers were blamed for the child deaths. They were excoriated in the press,” said a source who wished to remain nameless. “You can understand why they would say you shouldn’t give parents resources before you give them to us or feel like it’s letting the wolf into the henhouse.”
In a statement to The Daily Record, Monroe County spokesman Jesse Sleezer explained: “The program itself, although well-intentioned, would have injected lawyers into cases of abuse and neglect much earlier, potentially intimidating child victims and limiting access by CPS workers who would otherwise assess and monitor the child’s safety.” Sleezer did not respond to requests for comment for this story.
But the decision angered not just parents and their advocates, but also some judges, who countered that lawyers for parents don’t have access to children and couldn’t keep investigators from monitoring children’s safety, and that the county’s attitude spoke volumes about why parents need protection. They noted that parents of means can already hire lawyers during an investigation, and that when there’s an allegation of excessive corporal punishment or sexual abuse, parents currently have the right to counsel only if they have already been charged in a criminal case, despite the fact that joint questioning by a CPS investigator and a detective can lead directly to an arrest. The commission specifically invited comments on the merits of parental representation during an investigation, and speaker after speaker argued for it.
At one of a number of commission hearings held around the state, Mark Funk, a lawyer in Monroe County, testified about how risky it is for parents to resist any of CPS’s demands during an investigation. “You get the knock on the door and there’s a CPS worker there and they say, ‘I’m here to take your child away from you,'” he said. “It’s probably the worst moment of the parent’s life, and it’s no less traumatic if that parent has mental health issues, or substance abuse issues, or is a victim of domestic violence, or is just plain poor. It’s traumatic, and they get upset, and that’s used against them…That’s the first words out of the county attorney’s mouth. ‘Judge, they weren’t cooperative with the caseworker when they showed up to remove their child.'”
That risk exists in almost every aspect of an investigation. For example, parents under investigation are routinely asked to sign a blank HIPPA form giving CPS investigators authority to look at any health or mental health records that anyone has ever kept of them. Parents do have the right not to sign, or to sign a limited HIPPA. But refusing to sign—just like refusing to answer questions or allow CPS access to one’s children or one’s home at any time of the day or night—can contribute to a decision to remove a child.
In New York City, parents who can’t afford a lawyer are given one the day they walk into family court. This isn’t always true in other parts of the state, despite a state law that guarantees them one once the case goes before a judge.
Kate Woods, a lawyer in rural Wayne County, told the commission that in her county lack of representation is routine on a parent’s first day in court: “I have read transcripts of removal hearings where parents have repeatedly asked the court for counsel. They have been told, ‘No, no, we will get to that when we’re done with this bit of business,’ that of course being the removal of their children.”
City makes efforts, but questions remain
Even advocates for parents acknowledge that there are important differences between criminal justice and child welfare, the most fundamental being that children’s safety is at stake. When police violate a suspect’s rights to gain evidence, a judge can suppress that evidence. But no court is going to return a child to a home where there are questions of safety because of due process violations.
There’s also no Supreme Court ruling like the one that established Miranda Rights. Such a ruling would not only force the hand of child welfare agencies; it would also provide them cover. Without it, agencies would have to justify to the public and to their own workers why the agency took money from their budget to protect parents rather than to strengthen investigations. That justification would undoubtedly prove perilous after the death of a child known to the system.
In New York City, the number of families under investigation grew after the city experienced its own horrifying child deaths in 2016. Given the rise in investigations, increased surveillance through court-ordered supervision or requests that a parent “voluntarily” enroll in preventive services—processes that typically start with indicating a case—is one way that the city has attempted to make sure no child known to the system dies, while keeping its commitment to maintaining the number of children in foster care low.
ACS officials say the agency have demonstrated its commitment to protecting the rights of parents and families in other ways as well.
While New York City doesn’t provide families with lawyers during investigations, it does provide parent advocates at child safety conferences during investigations. Parent advocates have typically been involved in the child welfare system themselves, or have other relevant life experiences, and are trained to provide resources and information to parents during conferences where a decision whether to remove a child and others are made.
And when a case moves to court, and a lawyer is provided, for most parents, it’s more than just an attorney: In the city’s model of parent representation, lawyers working at one of three agencies are supervised by senior lawyers, and supported by social workers and parent advocates—arguably the best model of parent representation in the country.
Advocates, though, only show up for one day during the course of a two-month investigation, and the decision to indicate a case often happens before or after the child safety conference, when parents have no one advocating for them.