New Push to Provide Legal Advice to Parents Facing Abuse and Neglect Investigations

The Child Welfare Organizing Project sits in a corner of the Clinton Houses between 109th and 110th Streets in East Harlem, a place where parents can get advice from other parents when they are under investigation for abusing or neglecting their children. It’s one of the few places such parents can go because during an investigation, which can last up to two months, they have no right to a lawyer, nor are they typically told what rights they do have. In a dimly lit backroom with a few toys and a child’s drawing of a valentine on the wall, I speak with a handful of mothers with recent child welfare involvement. They ask that I not use their names for fear that doing so could lead to more trouble.

One mother, who wishes to go by Stella B., says she never had the opportunity to be properly investigated because her children, 8 and 17, were removed on an emergency basis and placed with a relative after she was kidnapped by her ex-boyfriend and held for eleven days—a fact confirmed by a letter from the Manhattan district attorney’s office—while child protective services “indicated” a case of neglect against her.

A case is deemed “indicated” when investigators contend they have found enough evidence to support the claim that a child has been abused or neglected. Because of that indication, her children were kept out of her care for four months, and even after their return, her case remained indicated until recently, when she appealed the finding. She allows me to look at the document from New York State’s Office of Children and Family Services that shows the judge’s determination, several years after the fact, that being kidnapped did not make her guilty of neglect. She was provided a lawyer only after ACS took custody of her children and indicated her case.

A second mother acknowledges that she crossed a line when she struck her daughter with a belt. Still, she’d hoped officials at the child safety conference she was invited to attend would hear how difficult her life had been at that moment, and understand that this was not her norm.

Lawyers are not permitted at child safety conferences, which are supposed to provide parents and ACS an opportunity to work collaboratively outside the adversarial relationship they’ll find themselves in if a case goes to court. But the conference didn’t feel like collaboration, the second mother says.

“When I went to the conference,” she explains, “I brought a letter from me, 10 years of good reports I’d had as an assistant teacher, character letters. But the facilitator said, ‘We don’t need it.’ I felt like I was confessing my sins to a priest who didn’t want to hear from me.” After the conference, ACS placed her name on the State Central Registry as a child abuser—similar to a sexual abuse registry—where it will stay until her child turns 28, unless she can convince a judge at some later date that she deserves to have it removed. Because the registry bars people from working with children, she lost her job; she now works nights as a security officer. She never saw a judge nor spoke with a lawyer.

Eva Santiago is a parent organizer at the Child Welfare Organizing Project (CWOP) who oversees the running of the office. In 2011, a Child Protective Services (CPS) investigator and a police officer came to her door and told her that her younger son had a bruise on his ear, and that someone had reported her for neglect.

Thinking she had nothing to hide, she told them everything: about the different diagnoses her son, 6, had been given, and that he was on the Autism Spectrum. She explained how, despite her modest salary, she’d gone above and beyond to get him services, from early intervention to ABA therapy. She said that she was still searching for the right services to meet her son’s needs, and that without them her son often had conflicts at school and at home.

She told them, too, about the kerfuffle the day before. She’d left her son napping to go down two flights to the laundry room; he’d woken, and bolted out the door; her older son, 13, had tried, unsuccessfully, to intervene; in the lobby, the doorman had stopped her son and sent him home. No physical violence had occurred, she said. Her best guess was that her son had gotten the bruise in school, where he sometimes provoked fights.

But at the child safety conference, the investigator, the conference facilitator, the father of her younger child and his girlfriend all seemed convinced that her older son had hurt his brother and that she’d failed to protect him. At the end of the conference, the New York City Administration for Children’s Services found her neglectful for the time she’d spent doing laundry, a decision, she says, that had a profound effect on her relationship with her son for years after, and caused a rupture in her children’s relationship that has yet to heal. Santiago, too, never had a lawyer.

Serious consequences without counsel

Advocates for child welfare reform have long decried the fact that parents in child protective investigations are afforded fewer rights than suspects in criminal cases, despite the fact that what’s at stake can be greater. “People say, ‘Take my liberty but I want to keep my children,'” explained Emma Ketteringham, managing director of The Bronx Defender’s Family Defense Practice.

In the past 40 years, as the number of reports of maltreatment has grown 50 fold nationwide, leading nearly one out of every 20 children to be the subject of an investigation every year—similar to ballooning incarceration rates— parents, advocates and child welfare systems themselves have become increasingly alarmed at the impact these investigations have on families, and at the racial and class disproportionality of who’s affected. In New York City, three-fourths of children in foster care are Black or Latino, while another 18 percent are classified as of unknown race or ethnicity. Only 6 percent are White.

New York City’s child welfare system has garnered praise for keeping its foster care rolls at an historic low even while the number of children in foster care nationally rises, but critics say not everything is better in New York, especially when it comes to investigations. They point to the fact that in New York City, roughly half of all removals are made without judicial oversight, sometimes because children are deemed in such imminent danger that investigators can’t wait for a judge’s approval, but often because the investigations happen at night or on the weekend when courts are closed.

They note, too, that New York State is one of only seven states plus the District of Columbia where the lowest standard—”some credible evidence”—is all that’s needed for parents to have a case indicated for abuse or neglect and their names put on the State Central Registry. In New York City, 40 percent of all investigations end with an indication, compared to 20 percent nationwide.

One issue central to the debate over due process protection during a child protective investigation is whether parents should be provided a lawyer—or any means to access legal advice—during that probe. Right now that right only kicks in when a case goes to family court—and even then, in many parts of the state, it is a right in name but not always in practice.