New Legal Nonprofit Will Seek Accountability In Child Welfare

Going into law school, David Shalleck-Klein dreamed of becoming a criminal defense lawyer. But after taking part in the Family Defense Clinic at New York University School of Law, he changed his mind. Defending parents in Family Court proceedings was his true calling, he said.

Shalleck-Klein, now an attorney at the Bronx Defenders, said he was drawn into family defense practice by injustices and lack of due process families are confronted with in Family Court.

“The criminal justice system pales in comparison,” he told Law360. “Even people who work in the criminal justice field are shocked when they see what happens in Family Court.”

David

Shalleck-Klein

Family Justice Law Center

Dysfunction, government abuse and civil rights violations abound in the child welfare system, he said. Yet public interest groups, legal nonprofits and pro bono lawyers have traditionally focused on other areas — criminal justice, police accountability or immigration.

Lawsuits brought in those areas have spurred meaningful change. For instance, a class action brought by the Center for Constitutional Rights helped curb the stop-and-frisk practice in New York City in 2013. One filed by the American Civil Liberties Union in 2018 led to an end of the Trump administration’s child separation policy.

But families embroiled in the child welfare and family regulation system, where they risk being separated from their own children, have been missing a champion, Shalleck-Klein said.

An organization that launched this week in New York will seek to fill that void.

Founded by Shalleck-Klein under the auspices of NYU’s Family Defense Clinic professors, the Family Justice Law Center will provide legal aid to parents suing government agencies over child welfare actions that might violate constitutional rights.

The organization will bring suits targeting aggressive practices by child welfare agencies, such as removing children from their families without court orders and entering and searching houses without permission. Other suits might tackle delays in Family Court that often cause children to languish in foster care.

The overall idea is to file affirmative suits, including class actions, to obtain damages for people harmed by the welfare system, but also to obtain injunctions and effect change.

In a statement accompanying its launch, the new nonprofit brands itself as “the first civil rights organization in America dedicated to suing Children’s Services and other government agencies that illegally separate children from their parents.”

According to estimates by the U.S. Department of Health and Human Services based on data collected during 2020, about 400,000 children are currently in government custody through the foster care system. About 45% of them are either Black or Latino, and 43% are white.

In New York City, investigations of child neglect or abuse are concentrated in poorer neighborhoods with a higher density of Black and Latino families.

About 23% of children in the city are Black. But Black children make up about 56% of the children who are removed from their families and placed in foster care, according to data collected by New York City Administration for Children’s Services during fiscal year 2019.

Only about 10% of child welfare agencies’ investigations are triggered by allegations of physical abuse. The overwhelming majority of children who are removed from their parents and enter foster care do so as the result of acts of neglect.

But neglect often boils down to issues related to poverty, such as substandard housing, lack of child care, malnutrition and inadequate clothing, according to the group.

Christine Gottlieb

NYU’s Family Defense Clinic

“This country defines neglect expansively, and we have built the most interventionist child welfare system in the world,” Shalleck-Klein said. “The child welfare system surveils, separates and at times permanently severs family ties at unprecedented rates.”

Child welfare agencies’ employees have “emergency power” they can use to remove children from their parents when they see a risk to the children’s safety.

Following the removal, an agency files a petition against the parents, who are required to appear in Family Court for an “intake” — the equivalent to an arraignment in a criminal court. The agency often asks the court to place children in foster care. Other times, the agency works with the family and the court to find alternatives to foster care.

For example, an adult who is alleged to be the person causing harm may be excluded from the home through an order of protection issued in Family Court, and the child is returned to the non-respondent parent. Other times, another caretaker, such as a relative or grandparent, could take temporary custody of the child, the Administration for Children’s Services said. 

According to ACS data for 2021, in 83% of cases presented at the initial hearing following an emergency removal, the court temporarily placed the child in a foster family or another caretaker.

But judges often sign off on emergency removals at those initial court dates because they’re overburdened, only to end up reversing their orders at subsequent hearings after having more carefully considered the evidence, Shalleck-Klein said.

Overall, a significant portion of emergency removals are legally dubious and are a potential liability for ACS, he said.

“When it is happening illegally, that creates incredible harm and trauma to the family,” Shalleck-Klein said. “And that’s part of what we plan on litigating in court.”

In 10% of emergency removals in 2021, the court returned the child to the parent involved in the allegation of neglect or abuse, with court-ordered supervision and other protective orders in place at the initial hearing, ACS said.

A spokesperson for ACS told Law360 in an email that the agency is “committed to being responsive to the needs of children and families” and said its policies in the past five years have contributed to a 36% reduction in the number of children entering foster care, which is now at its “all-time low” of 7,111 children.

“We are continuing to develop new ways, in partnership with government and community organizations, to keep children safely at home while carrying out our legal responsibility to keep New York City children safe,” the spokesperson said.

ACS said that in the vast majority of its investigations, children are not removed from their homes. Fewer than 2% of child protective investigations in 2021 had an emergency removal, the agency said.

A report featured in the Journal of Law and Social Change of the University of Pennsylvania Carey Law School shows that even a short-term removal from parents can inflict long-lasting harm on children.

“Removal strips the child of his connection to his birth parents, his siblings, his extended family, his friends and often his school. It abruptly disrupts his attachment to his primary caregiver, and it thrusts the child into a foreign system: foster care,” the report says. “The experience of removal and placement in foster care traumatizes children in complex ways.”

Martin Guggenheim, the co-director of NYU’s Family Defense Clinic and one of the academics on the Family Justice Law Center’s advisory board, called family separation “the most pressing, yet most underfunded and misunderstood, civil rights issue of our time.”

“Under the guise of helping, the child welfare system terrorizes and destroys families in poor communities of color,” Guggenheim said in a statement.

Many Americans were shocked to learn about the Trump administration’s policy of separating unauthorized immigrant children from their parents at the U.S.-Mexico border, he said. To lawyers like Shalleck-Klein, that shock has become routine.

“The deep heart-wrenching pleas of children to be returned to their parents were nothing new to families affected by the child welfare system, or to those of us who fight in family court on behalf of parents to prevent the removal of their children,” he said. “We saw those types of unnecessary removals and the screams that come with them frequently, in our own city, in New York.”

Emergency removals, which present possible violations of due process under the Fifth and Fourteenth amendments, represent only a portion of the cases in which the Family Justice Law Center would bring suits, according to Shalleck-Klein.

Cases in which welfare agencies’ employees enter people’s homes without judicial approval, potentially in violation of Fourth Amendment rights, are another area where the nonprofit expects to be active. Tacked on to constitutional claims are state law-based claims and torts, such as infliction of trauma and emotional distress.

Shalleck-Klein said only 1% of investigations in which ACS enters homes are backed by court orders.

Christine Gottlieb, who co-directs NYU’s Family Defense Clinic as is another member of the Family Justice Law Center’s advisory board, told Law360 that the creation of the nonprofit fits within a broader movement that seeks to change the way government agencies protect children and interact with families.

“This whole system is not accomplishing what it’s supposed to. It’s hurting families more than helping them,” she said.

Gottlieb said temporary family separations are sometimes necessary, but the government agencies are resorting to that practice as routine, and without judicial oversight.

“What the Family Justice Law Center is doing is talking about process,” she said. “The most horrible thing that a government can do is separate a child from a parent. It doesn’t mean it never has to happen. But it means that it should only happen when it’s absolutely required.”

–Editing by Rich Mills.

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