How Early Legal Representation Can Protect Families

By Careena Farmer, Melissa Landrau, and Sara Werner, Rise Parent Contributors, and Keyna Franklin, Rise Parent Leader

NYC parents at risk of child protective involvement or facing an investigation can now access legal representation through family defense organizations in their communities. In October 2019, NYC’s City Council also introduced a bill that would ensure that all parents being investigated by ACS have information about how to access a lawyer and the opportunity to do so, although it hasn’t yet passed. Here, Emma Ketteringham, managing director of The Bronx Defenders’ Family Defense Project, explains the importance of early legal representation and systemic reform to reduce child welfare involvement. The Bronx Defenders has been providing early legal representation to parents facing ACS investigations for 15 years.

Q: If you think you’re at risk of ACS involvement or being investigated, how can you access legal representation?

A: In 2018, NYC’s City Council issued money to legal defense agencies to provide early representation. You can call at the first sign there may be a report–you don’t have to wait until you know ACS is going to investigate you. This is so important during the pandemic we ae experiencing, because we have no way to meet parents in court. Legal providers in NYC are available to counsel parents who are investigated during this time.

Let’s say you’re worried because a meeting at school did not go well, and this person is really misunderstanding where you’re coming from. Or your neighbor threatened to call ACS on you. You can call one of the providers (based on the borough you live in) and say, “I’m calling because I think ACS might investigate. I would like to speak to a lawyer or a parent advocate and a social worker.”

This is available in New York City. It is one of few programs of this kind in the country. It’s very rare and new. Most parents only get lawyers when they go to court.

Our goal at The Bronx Defenders is to provide lawyers and advocacy as early as possible to parents. We have a 24-hour hotline you can call. It is really important that all parents have the opportunity to speak to a lawyer or an advocate about what’s happening, what it means to have an ACS investigation, and what is available to your family. Right now, a parent with means, money, or access would contact an attorney at the first sign of ACS. We want that protection to be available to all parents. 

We started providing early support naturally many years ago. For example, a parent might have been arrested, and the lawyer may have seen this was a case where ACS might get involved. We meet most of our clients in court. What we see is, compared to parents we meet earlier, things have already gone wrong. So many removals seem to occur because of a misunderstanding between a parent and caseworker, or because ACS had something wrong, or because our clients needed access to support and services and ACS wasn’t offering it as soon as they should or weren’t helping parents remove the barriers to access those services. 

Other times, services aren’t what’s needed. Sometimes what people need may be housing. They have been on waiting list, moved around the shelter system forever, changing schools, commuting great distances to get their child to school, and the stress of that might at the bottom of an educational neglect case or even at the bottom of a corporal punishment case. You don’t need a parenting class for that. You need to address the source of the stress. We often see ACS evaluate parents by their worst moment or without the full context, without looking at how the community could support them.

Usually parents are very open with us about what is going on. Sometimes they have no idea why ACS is there, because there was a revenge call or a mistake in the school system that shows absences. Often parents know why they’re there. The parent might say, “They might be here because my daughter and I got in a fight and she ran away. I think my daughter and I could use therapy together. I can’t talk to her anymore. She’s driving me crazy and breaking curfew.” We’ll problem-solve together. We are asking, “What do you think would best serve your family right now?” 

We hope to show that early legal representation is better for everybody. It’s better for parents and it’s better for children. Ultimately, it’s better for ACS and the family court system, because it keeps unnecessary cases out of court. It keeps children at home and avoids the trauma of separation, which should never happen unnecessarily.

Q: What rights do parents have during an investigation and how can early representation help? 

A: Although New York State currently does not require that ACS inform parents of their rights, City Council has introduced a bill to change that. Indeed, parents do have a significant number of rights. For example, if an ACS caseworker comes to your door, you have the right to not let them in your home. You have the right to not answer their questions. You have the right to not have them speak to your children. 

They have to go to court and show a judge that there is “probable cause” to believe that this child is being abused or neglected, and get an Entry Order. 

It is very similar to police power. The police can get a warrant to enter your home. If the police don’t have a warrant, you don’t have to let them in. Even when the police come to your door with an ACS worker, which we know happens often, your rights don’t change. They still have to have a court order to enter your home. 

If they present you with an order from the court that says they have authority to enter your home, that is different. Or you can get a summons that you have to appear in court. At that point too, you have rights. You have the right to have information about why they are there. You have rights to know what’s going to happen in your case and you have the right to challenge the decisions ACS makes. You have the right to ask for a hearing. You have the right to require them to present credible, reliable evidence of neglect or abuse. 

The government’s power to interfere in a parent and child’s relationship is a huge power and as individuals we have the right to stand up to that government power and ensure that it is being wielded fairly and in the correct circumstances. 

It is really important to stay as calm as you can when you are exercising your rights. It is very hard not to have your feeling of powerlessness turn into anger. It makes sense to be angry. But everything you do gets written down, and sometimes gets distorted. 

The way I would try to handle it if ACS came to my door is to say something like this, “I know you have to investigate every call. I get that. I’m going to let you see my child so you know that he is safe. Here he is, he’s safe. If you want to see me or have further conversations with me, we’re going to make an appointment and I’ll come see you.  If it is an emergency in your view, which I am assuring you it is not, you can go to court and get a court order and then of course I’ll let you in.”

Q: What is the role of a social worker and parent advocate on the legal team?

A: We’ve found that the multidisciplinary approach—including a lawyer, a parent advocate, and a social worker—is the best way to provide family defense. There are so many meetings that take place outside of court and so much happens in interactions with investigators or case planners. It is important to have a member of the legal team accountable to you in those meetings. 

Someone who is a member of your legal team, a parent advocate or a social worker, works for you. You tell them what you need.  If you say, “I went to the parenting class. It was uncomfortable. I didn’t connect to the people in the group.” Or, “I didn’t like this class. It was too far from my home.” Whatever the reason, we don’t doubt that. We say, “Okay. Let’s find one that you like better.”  Or we may challenge the requirement all together.

Our advocates can go with parents to different service providers and speak to therapists ahead of time to make sure they really are going to work with the parent. We have had parent advocates say, “They don’t need this service. You have it wrong. The real issue is lack of sleep because they are in a noisy, crowded shelter. We need a housing transfer.” 

Q: In October 2019, the New York City Council Progressive Caucus introduced a package of child welfare reform bills and resolutions to increase parents’ rights and child welfare system accountability and transparency. At a City Council hearing, ACS and a union representing many ACS caseworkers testified that a proposed bill to require legal representation for parents during an investigation could negatively impact children and that parents shouldn’t have an attorney during an investigation because it’s a social work process, not a criminal or legal process. Can you respond? 

A: As advocates, we were shocked to hear the commissioner and caseworkers’ union take that position, because they know that early defense brings fairness to the process and helps to avoid unnecessary harm and trauma to families in New York City. We know that separation is harmful in and of itself. Without early defense, more removals happen unnecessarily. Children are unnecessarily taken from their homes and families and all they know and love. That endangers children. 

The Bronx Defenders has been doing early representation since 2005. There has never, ever been a situation where our early advocacy resulted in a child being less safe. ACS has not pointed to any evidence that supports the position they took in that hearing. 

When a CPS worker comes to your door and asks to look through your cupboards and in your fridge, asks you questions, sends you for a drug test, asks you about whoever lives in this home, and wants to talk with your child without you present—that’s not social work, that is an investigation. There are fundamental legal rights at stake. 

ACS has publicly said that they are committed to addressing the egregious fact that child welfare is one of the most racially segregated systems in New York City. This is a concrete way to address inequity. The fact that they came out against it makes their promise hollow.

There seems to be a complete disconnect between what ACS leadership wishes for their agency to be and what it actually is on the ground. It is a denial and whitewashing of what is truly at stake for families. Let’s at least have an honest conversation about what is really happening. Let’s not pretend this is a friendly visit. 

Fundamentally, it is an equity issue. We are not creating a new right. Parents always have the right to speak to a lawyer. It’s just that only rich people can afford to do it. This is about making sure everyone has access to that protection. You don’t have to call a lawyer. This is not a forced program. It is just providing a service to people for whom it is not available right now because of money. 

Q: Some legal advocates want similar protections for children. What could be the impact of both the parent and the child having lawyers during an investigation?

A: I don’t think children should have a lawyer until there has been a finding that a parent is unfit. That relationship should not be made legally adversarial. It infringes upon parents’ fundamental right to care and custody of their children. At the point of investigation and until there is a court case, you are the parent and you make the decisions in the best interest of your child. That’s your job. Until they can show that you’re not doing that job, your child should not have an advocate against you.

Q: The bill hasn’t passed yet. What is needed to pass it? 

A: Because of the way the bill was originally written, it was more of a conversation starter. 

We suggested an array of changes to the bill and we’ll see where that leads. 

It’s time to get some support for the bills! Parents, advocates, community members — everyone has an interest in the government being more accountable to the people and fair. 

Q: What else will it take to protect families impacted by the child welfare system?

A: When I started, I thought, “Parents just need a good strong defense.” But there is so much more than an individual needing a strong defense. We have to re-envision how we support families and I think that actually requires true socio-economic change. 

The problem is that the system was built to punish parents, not to support parents. The system was created to control certain families. It reflects structural racism and economic inequality in our society. That is the origin of the system and today’s system reflects that origin no matter how we try to dress it up. Parents are being looked at as individual failures, rather than families that require support and help. Often families of wealth and privilege need that same support, but they are getting it privately and no one sees it. 

We need true structural change and we need resources that are community identified and community grown. I’ve talked with parents in the Bronx who say, “I wish there was green space to play. I wish there were dance lessons, music lessons. I wish there was childcare, tutors. I wish we had a community space where maybe I could exercise while my children were doing their homework.” We all benefit from support and we all need help sometimes as parents. It is about having different priorities. The problem right now is that, instead of money being given to communities to create the kinds of supports that they want, money goes to ACS or the court system. 

If we actually supported and cared for families, we’d have a lot fewer cases. And when we did have cases that were serious and warranted state intervention, we’d have resources to ensure that it wasn’t done as traumatically as it is now. 

Related Resources

Know Your Rights During an Investigation: Rise Facebook Live Recordings
Part 1: Nancy Fortunado, Rise senior parent leader, speaks with a lawyer from the Brooklyn Defender Services about the difference between abuse and neglect in New York State.

Part 2: Nancy Fortunado, Rise senior parent leader, speaks with a lawyer from The Bronx Defenders about your rights during a child welfare investigation in New York State.

Rise testimony to City Council at the October 31, 2019 hearing of the General Welfare Committee:

‘Parents Are Blindsided’: NYC City Council bills would protect families during an investigation

Rise testimony submitted to the New York City Council Committee on General Welfare

Nancy Fortunato, Rise Parent Leader: “Every parent should have timely legal representation at the beginning and be informed of their rights, just like the Miranda Rights.”

Careena Farmer, Rise Contributor: “Parents aren’t aware that their rights are being violated, which is causing unnecessary removal of children.”

Hope Lyzette Newton, Center for Family Representation (CFR) Parent Advocate, Rise Board Member, and child welfare-affected parent: “All parents NEED legal counsel at the very beginning of an investigation to protect their families from unnecessary trauma.”


Justice in America Episode 23: Criminalizing Mothers
On this episode of the podcast, Justice in America, Josie Duffy Rice and her guest co-host Zak Cheney-Rice look at the relationship between the criminal justice system and family court, and examine how together they can wreak havoc on American families. They are joined by Emma Ketteringham, managing director of the Bronx Defenders Family Defense Practice.

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