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At the Center for Family Representation (CFR) we have defended close to 10,000 indigent parents who are summoned to family court by the city’s Administration for Children’s Services (ACS). We applaud Rachel Blustain’s “New Push to Provide Legal Advice to Parents Facing Abuse and Neglect Investigations,” where she adeptly and comprehensively illuminates the heart-rending predicaments faced by parents being investigated by ACS, without the benefit of legal counsel. Her focus on the parents who have been through this dramatically illustrates the fear, frustration and anger of parents confronting the daunting power of ACS.
Most of us readily agree that those accused of a crime need access to counsel when confronting police, because the liberty interests at stake are so important—even guilty people shouldn’t face the overwhelming power of government alone. As Blustain poignantly underscores, it’s time we recognize that the interests at stake for parents under ACS investigation are just as compelling, with consequences that can be just as grave—family separation is at best difficult and confusing, and at worst, terrifying and traumatic. ACS does not remove children with painstaking attention to a child’s perspective (or age and development). Parents cannot reassure children with information about where they will go or when they will next see each other; school, daycare, and friendships are disrupted abruptly. Once a family court case begins, the parent faces the risk that their rights to their children will be severed forever.
At CFR, we generally meet parents on the first day they are summoned to court—often their children have already been taken and they have yet to see or speak to them. They are usually distraught and anxious about their children’s well-being, as we all would be. We meet parents in teams: an attorney and a social worker. That means one of us can simultaneously engage the parent while the other meets with the ACS prosecutor or caseworker to understand the agency’s primary safety concerns.
As the case unfolds, the attorney ensures that the city meets its legal obligations to the family, while the social worker connects a parent with services: mental health, substance use treatment or housing assistance. Time and again, we conclude that with the chance to intervene earlier, we could have helped a parent avoid a removal and likely any prosecution at all. Sometimes, our social work staff helps a parent put a plan in place that leads ACS to consent to the return of a child that very first day. And in many cases, we secure the safe reunification of the children, within days or weeks.
Even when well-intentioned, ACS caseworkers can’t provide the same kind of assistance to parents during an investigation. Many parents do not understand the process that is unfolding or how serious the legal consequences can be. In the same way that we all can benefit from legal advice before a difficulty becomes a crisis, we see over and over again that an attorney can help the parent navigate the ACS process in a productive and positive way. Many parents will agree to anything ACS asks them to do during an investigation, because they are afraid of losing their children. Without skilled social work support, they often agree to a service “plan” that is unrealistic or not appropriate, and then they face a prosecution for non-compliance, and lose custody of their children anyway. This makes them more hostile to ACS, and often desperate—which can lead them right back to the behaviors that may have created a risk to their children in the first place, like substance misuse.
Perhaps most important, earlier access would provide parents with something ACS can never assure—confidentiality. The extent to which parents mistrust ACS cannot be overstated. Parents have an enormous amount to say about their children’s needs and their own worries. They need to trust that the people they confide in will work diligently and quickly to help them. There is a “design defect” in the structure of child protective work: The same worker who is offering you help and telling you what to do can also take your children, and then will testify against you. Our role, in every case, is to help parents learn to cultivate this relationship as best they can, while also protecting their rights. Confidentiality does not mean we do not focus on child safety; quite the opposite, we work with parents on achieving safety because most parents are intensely focused on the well-being of their children. When parents know you will both help and defend them, and when caseworkers know that you will advocate for parents, we typically find we can arrive at consensus with ACS that results in child well-being and less litigation.
Several years ago, CFR had state funding to work with parents prior to a court case. ACS referred parents to CFR during an investigation. Staff from both our agencies had to confront philosophical differences over the dual goals of engaging parents while ensuring child safety and the city had to become comfortable with an advocate supporting the parent who often disagreed with it and with whom the parent enjoyed a confidential relationship. This unique partnership between CFR and ACS worked: Of the families supported, in 80 percent there was no child protective removal and no family court filing. Unfortunately this project ended after a child fatality in an unrelated case and the funds were diverted elsewhere. We have continued to help parents during an investigation when we can, but without steady funding, we are unable to meet the clear demand.
The shorter foster care stays we achieve on our court cases already saves money—we estimate more than $37 million since 2007. Imagine if cases never came to court. More important, imagine the savings in human terms—to parents, children and their communities. As Ms. Blustain correctly notes, the number of families under investigation has grown since 2016, with many more cases also being filed in family court. Last year, 85 percent of our clients were people of color. Of those, 34 percent were Black. But Blacks make up just 24.3 percent of the city’s population. So, earlier access to competent support could be another tool in any effort to address racial disparities in the child welfare system.
Whatever the motivation, the push for legal and social work support for ACS involved parents is long overdue.
Michele Cortese is the executive director and Tehra Coles is the supervisor of government affairs and policy at the Center for Family Representation.
