Pandemic Exposed Excessive NY Child Removals, Attys Argue

By Marco Poggio | March 24, 2023, 9:55 PM EDT ·

As New York City schools shuttered and people went into lockdown amid the onset of the COVID-19 pandemic in March 2020, city officials expected that having more children stuck at home would mean more children suffering abuse or neglect — but they were proven wrong.

During the lockdown, the city's welfare system nearly shut down, resulting in half as many children being removed from their households on allegations of abuse and neglect as there were before the pandemic. Despite fears that a dropoff in removals would mean more children being mistreated, child deaths and incidents of abuse or neglect did not spike.

In a study published last week in Columbia Law Review Forum, a pair of attorneys with the Legal Aid Society of New York said that the unintended social "experiment" created by the pandemic helped scrap the theory that removals are often necessary to keep children safe.

In the study, which looked at statistics on child removals before and during the pandemic in the city, Melissa Friedman and Daniella Rohr concluded that the New York City Administration for Children's Services separates far more children from their families than necessary.

"We argued that COVID created this sort of unexpected experiment where the way things worked in the child welfare system changed fundamentally very quickly and tested a lot of the assumptions and a lot of the practices that have been existing for so long," Rohr said. "We used ACS's own data to argue that the way that the system currently operates is too aggressive."

Every removal case begins with a call to the New York State Central Register, which operates a hotline for reporting suspected child abuse. In New York City, most of the calls are made by public schools, followed by police, social services, and medical or mental services, according to ACS data. Private citizens can report allegations anonymously.

Under New York law, child welfare agencies can remove children from their families only if they face an "imminent risk of harm" — a high standard. Allegations are investigated, and if they are substantiated, charges are filed in family court.

During the pandemic's first wave, between April and June 2020, ACS removed less than 50% of the number of children it did during the same period in 2019. It also placed half as many children into foster care, the study found. At the same time, family court, which has jurisdiction over child maltreatment cases, nearly shut down during those months, handling only emergency matters involving children at imminent risk of death or serious physical harm.

Despite decreased activity and monitoring by ACS, the percentage of cases where abuse claims were substantiated remained steady, around 37%. The number of investigations for child fatalities suspected to be the result of abuse and neglect, meanwhile, dropped 25%, the study found.

"Even with this dramatic drop in removals and shrinking of the system, safety of New York City children was not compromised," Rohr said.

Friedman and Rohr said that when the child welfare system began working normally again in the early months of 2021, family court filings and removals didn't soar, but rather dropped — a fact they said dispelled concerns that cases of abuse and neglect could have been underreported during the lockdown.

Even then-ACS Commissioner David A. Hansell said during June 2021 testimony to a New York City Council committee that "we really haven't seen any indicators of a larger bolus of undetected child abuse" during the pandemic and noted that the overall number of child emergency room visits, which are red flags for severe physical abuse, remained stable during the initial lockdown period.

According to ACS data, the total number of children removed from their families has declined since 2019, though there was an uptick in 2021 as the city gradually emerged from the initial phase of the pandemic. The city's foster care census has also continued to decline during the same period. As of December, the city's foster care population was at an all-time low: 6,716. In 2013, it was nearly 11,500.

While acknowledging that ACS is removing fewer children than it did pre-pandemic and has made strides to curtail the practice, Friedman and Rohr argue the agency is still removing children at rates higher than necessary to ensure their safety.

According to ACS monthly reports, the agency removed 123 children in April 2020, 138 in May 2020, and 118 in June 2020. By contrast, in April 2022 it removed 166 children, 158 in May 2022, and 172 in June 2022.

Child Welfare Investigations Go Hand-in-Hand With Poverty

Data from the city's Administration for Children's Services shows that child welfare investigations occur in higher numbers and at higher rates in neighborhoods with higher rates of child poverty. Advocates argue the correlation indicates bias against impoverished communities in the child welfare system. Overall, however, ACS investigations have decreased in recent years and the foster care population has shrunk.


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Sources: New York City Administration for Children's Services; American Community Survey

"Though these numbers may seem like only a small increase," the study's authors said by email, "It's important to understand that each one of these numbers represents a child and a family, whose life has been completely upended, perhaps permanently so."

Marisa Kaufman, a spokesperson for ACS, told Law360 in a statement that the agency "has learned a great deal" from the pandemic and that it is "acting on those lessons."

"We are investing in community-based services and tangible support to families, including child care. We are working hard with our colleague City agencies to reduce racial inequities in reporting, and are refining our practices around court filings and removals while acting with appropriate urgency when a child is in danger," Kaufman said. "We have made significant progress and are committed to further improvements to best serve NYC's children and families."

Rohr and Friedman, however, argued that child removals were still being pursued too aggressively and called attention to racial inequities and bias in the child welfare system, which are well acknowledged by ACS itself.

According to ACS data, 91.9% of children removed in New York City in 2019 were either Latino or Black. An internal ACS audit based on interviews with its Black and Latino caseworkers, as well as advocates and families, described the agency as a "predatory system that specifically targets Black and Brown parents," the study says.

"There's no denying that racial bias exists in the system," Friedman said. "These are over-policed communities."

In a set of policy proposals included in their study, Friedman and Rohr called on ACS to implement a race-blind removal process where the investigative caseworker conducts an individual assessment and presents facts of the case to a committee without any identifying demographic information, including race or neighborhood.

The race-blind approach to removal has been tested elsewhere in the state with positive results. A pilot program in Nassau County led to a nearly 50% drop in removals for Black children, with removal rates falling from 55.5% to 29%, according to a 2019 case study cited by Rohr and Friedman.

But ACS disputed the effectiveness of the race-blind removal process in addressing racial disparities, and pointed to a study published in September concluding that, adjusting for the fact that Black children are substantially more likely than white children to be investigated for maltreatment to begin with, white and Black children are removed at similar rates. That study further found "no evidence that blind removals impacted the already small racial disparities in the removal decision, but they substantially increased time to removal."

The Columbia Law Review Forum study's authors urged ACS to scrutinize and revise its removal policies to avoid too many removals, and to include people impacted by family separations in the training of its staff, policy creation and removal decisions.

ACS said removals are always a last resort and only conducted when it is determined that a child is in immediate or impending danger of serious harm and there are no other safety interventions that can promote the child's safety. It also said it is working with other city agencies and "mandated reporters" — professionals, such as teachers, police officers, doctors and daycare workers, who are obligated by state law to report suspected child abuse — to help reduce unnecessary reports to the hotline.

Friedman and Rohr called on state lawmakers to pass a "family Miranda bill," introduced for the third time in the state Senate in January, that would require caseworkers investigating child mistreatment to notify parents and caretakers that, unless they have a court order, they are not required to permit a child protective investigator into their home.

The attorneys also urged child welfare caseworkers and judges, who have the ultimate say in deciding whether a child needs to be removed, to distinguish between poverty and neglect when addressing cases. Among the studies they cited, one found that states that spent more on benefit programs saw reductions in child mistreatment.

"Studies show it's actually really effective to give families cash. That lowers the rates of maltreatment," Friedman said.

They also argued New York should change the way the State Central Register operates to root out false and biased reporting that trigger maltreatment investigations. For instance, they recommended that the state abolish anonymous reports.

Sen. Jabari Brisport, a Democrat in the state legislature in Albany who sponsored legislation that seeks to overhaul the child abuse investigation process, including the Miranda bill and one banning anonymous reports to the hotline, has urged his colleagues to take action to mitigate racial inequities in the child welfare system and reduce family separations, which he says affect children of color in particular.

"It's hard to overstate the degree of harm children experience when they're ripped away from their families and placed into the child welfare system — yet New York recklessly exposes kids to this harm far more often than necessary," Brisport said in a statement emailed to Law360. "The Confidential Reporting Bill and the Family Miranda Rights Bill are important first steps and every day we fail to pass them, more children will pay the price."

Brisport serves as chair of the state Senate's committee on children and families. The office of Sen. Rob Rolison, a Republican ranking member of the same committee, did not respond to requests for comment.

According to a February 2022 report from the mayor's office on New York City agency operations, only 35% of nearly 43,000 investigations opened by ACS found credible evidence of abuse or neglect in 2021. Meanwhile, overwhelmingly more Black and Latino families are the subjects of investigations, according to ACS statistics.

Advocates say child welfare investigations can be invasive and traumatic. They point to several studies that focused on the harm suffered by children placed in foster care as proof that removals should only happen when strictly necessary, for instance when a child's life is at risk.

Friedman and Rohr cited a 1998 study conducted by Kaiser Permanente's San Diego Health Appraisal Clinic looking at 90 children in foster care aged eight to 14, which found that separation from a caregiver "is severely threatening for the child, irrespective of the quality of the child's experience with the parent." The children were "overwhelmed with feelings of abandonment, rejection, worthlessness, guilt, and helplessness," the study said.

A separate 2005 survey by national philanthropic foundation Casey Family Programs of more than 600 foster care children in the care of the Oregon and Washington state child welfare agencies, as well as Casey's facilities, found that post-traumatic stress disorder rates for foster care children were up to twice as high as for U.S. war veterans.

The impact of family separation sparked broader public interest in 2018 when President Donald Trump's administration was criticized for separating migrant children from their parents at U.S. border crossings.

A Cambridge Hospital psychologist interviewed for a PBS documentary series and quoted in the study said that removing infants or young children from their parents even for brief periods can cause cortisol, a steroid hormone, to flood their brains, resulting in damage to brain cells. In addition, overstimulation of the amygdala, a portion of the brain responsible for fight-or-flight instincts, can impair a child's decision-making process.

Research on the neurological development of children in Romanian orphanages done by a Harvard Medical School professor, Charles Nelson, found that high levels of stress hormones can result in lower IQ. Another 1998 study published in the American Journal of Preventive Medicine found that child abuse leads to higher depression, more suicide attempts, and more problems with substance abuse and gambling later in life.

"There can be permanent structural changes to a child's brain. There are long-lasting emotional traumas," Friedman said.

On top of reducing the overall number of removal cases brought in New York family court, Friedman and Rohr also said the state should boost the pay for attorneys representing children and parents to help ensure adequate representation. Last week, a group of legal aid organizations dedicated to representing children in family court urged lawmakers to earmark more funds in the new state budget, which needs to be adopted by April 1, to try and stem an exodus of attorneys who have been leaving those jobs for higher-paying ones.

While elected officials and court administrators have been more open to raising salaries of other types of state-funded attorneys, such as public defenders and private "Article 18-B" lawyers appointed to represent indigent people charged with criminal offenses, attorneys for children in particular have borne the brunt of chronic underfunding that resulted in high attrition rates and demanding caseloads for those who stay in the practice.

Attorneys for Children organizations, which represent about 90% of children in New York City and other large cities in the state, lamented that their funding has been static for nearly 20 years, between 1 and 3%, while inflation has grown at a faster pace. And a 10% funding cut applied at the onset of the pandemic that further strained AFCs' operations has yet to be reversed.

In their budget proposals, Gov. Kathy Hochul and the state legislature included more money for public defenders but not for AFCs, who are the first line of defense and advocacy for children facing removals. Currently, AFCs are paid $75 per hour.

Earlier this week, the New York State Bar Association sued New York State to force a salary increase for both Article 18-B attorneys and attorneys for children, arguing they should be paid $164 an hour, the same rate that their counterparts in the federal courts receive.

"The NYSBA lawsuit seeks to have New York live up to its responsibility under the constitution to New Yorkers in need," Sherry Levin Wallach, president of NYSBA, said in a statement. "For the constitutional right to counsel to be anything more than an empty promise, we cannot ignore this disparity for even one more day."

--Editing by Nicole Bleier. Graphics by Ben Jay.

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