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Systems Built on Good Intentions are the Most Dangerous: Pt. 1

by Emma Ketteringham on how ACS surveils and controls pop
August 19, 2020

This interview with Emma Ketteringham, managing director of the family defense practice at the Bronx Defenders, was conducted and condensed by franknews. The second half of this conversation on the child welfare system can be found here.

Emma | The Bronx Defenders is a public defense nonprofit located in the South Bronx. It was founded in 1997 by a group of public defenders who were committed to really redefining how people in criminal legal proceedings were represented. They were some of the thought leaders in a practice called holistic defense. 

Really the best way to understand holistic defense is to see it as representing a whole person, rather than just a person in the case that they have. It requires thinking about how contact with the criminal legal system has affected or might affect every aspect of their life. 

Is it affecting their employment? Is it affecting their housing? It also asks, why was there this contact with the criminal legal system in the first place? Is there a way to address whatever drove a person into the system? 

frank | How did you get involved with the family practice specifically?

When I started, I began to talk to my clients about the impact contact with the criminal system had affected their families and I learned some pretty harrowing facts. Even if I was able to resolve someone’s criminal case favorably, without a criminal record or without jail time, I would learn that as a result of that arrest, the family had come to the attention of the so-called child protection system - and I say so-called because I think whether they actually protect children deserves interrogation, but just to use a more recognizable title. Every state has such an agency charged with investigating families for abuse or neglect of their children. In New York City it's the Administration for Children’s Services or ACS. I began to learn that the arrest, although that had been resolved quickly, had ignited an absolute nightmare in family court with ACS. It had led to intrusive surveillance of their family and for many, the removal of their children from their care. So I started representing my clients in family court.

We found a broken system. We found parents there who were not being advised of their rights or given the necessary information to get their children back. We found children who were languishing in foster care unnecessarily as a result. The city itself was looking at family courts at the same time and finding some of the same things. In 2007, New York City created family defense providers - institutional public defender offices to represent parents in family court proceedings. The Bronx Defenders then expanded to also represent parents in these cases, and since then I have been involved in the practice. 

How many people are you working with at one time?

Today we have a practice that consists of about 50 lawyers, and about 25 social workers and parent advocates. One key facet of holistic defense is that our clients don't just get a lawyer assigned to their case. They also work with a parent advocate or a social worker who does a lot of the advocacy and work with the family outside of the court system. We work in those holistic teams and we represent about 2,300 parents at any given time. We pick up about a thousand new parents each year - there are cases that resolve and cases that come in.

It’s important to note that New York City is one of the few places that provides a public defense model to parents in these kinds of cases. The right to a lawyer is not a US constitutional right, like the right to a lawyer when you're accused of a crime. 

It is up to the states whether or not you have the right to a lawyer when the custody of your children is at stake. Most states do have that right, but New York City is really one of the rare places that has an institutional holistic model of representation for parents. The implementation of institutional holistic defense providers has had an incredible impact. Children are spending fewer months in foster care in the cases where we represent the parents, as compared to cases that don't have us as their lawyers.

Can you help me understand how ACS works? 

Sure. So, a call is made to the state central registry to report a family for child abuse and neglect. You have probably heard the term “mandated reporter” - the folks who, by law, have to report suspected abuse or maltreatment - doctors, teachers, social workers, nurses. But you don't have to be a mandated reporter to call in a report. In New York City, neighbors can call and report, exes can call and report, reports can even be anonymous. Then, if the report is accepted by the state central registry, it is dispatched to the child protective agency in the area where you live. In New York City, that's ACS. They are then mandated to go out and investigate.

ACS does not get to pick and choose which families they investigate. If they get a report that was accepted by the SCR, they must go out and investigate. Once they go out and investigate, however, they have a range of responses and they have very broad discretion. Investigations are very intrusive.

Essentially, these cases begin with a knock on your door at any time of day or night. The ACS case planner can go accompanied by a police officer, they don't always go accompanied by a police officer. They gain entry to the home and then they start their investigation. They do not have to disclose to the parent who made the report. In fact, some reports can be anonymously made to ACS. They do an extensive investigation, which varies a bit depending on what the allegations are, but those investigations will involve speaking to the parent, doing a house inspection, asking to see all the rooms of the house, asking to see if there's sufficient food in the cupboards and in the refrigerator - and that's regardless of what the allegations are, an analysis of food. Then they will also ask to speak with the children, and they will speak to the children alone and separate from the parents. The people speaking to children are not social workers, because they are not required to be.

I've had parents complain to me that the first time their children ever heard about drugs was from an ACS case planner asking them about it. The first time they ever heard about child abuse was when an ACS case planner was interrogating them.

And the investigation can also include body checks. And the way it's written about in ACS training manuals is, "observe the parts of the body that are normally covered by clothes." So these can be extensively intrusive investigations. 

What happens next? What happens if they find evidence of abuse or neglect? 

They can do one of four things.

One, they can find no evidence and close the case and say, I'm very sorry. I just completely traumatized your family, but now I'm going to close the case. That would mean that you're not listed anywhere on any sort of state registry as a child abuser, you are not brought to court, and you do not have to engage in services.

The second thing that they could do is say there's some evidence here of abuse or neglect and we do have “concerns” - “concerns” is a big word in the family surveillance system. And then they might say, we'd like to send you to treatment. Maybe we'd like you to go to a drug treatment program. Maybe we'd like to connect you with mental health services, but we're not going to file a case against you in court. We would just like to surveil you outside of court - they say “supervise” - but basically what they're saying is, if you do what we say, this won't get worse. And many parents opt for that. They comply because they're so fearful of what might come if they don't. And so often all this surveillance and additional services just burdens families and utterly fails to actually strengthen them.

The third thing that ACS could do is say, we're not going to take your children away from you, but we are going to file a case against you in court, and that's because we think we need an extra layer of supervision over your family. This involves a more intense level of surveillance, and if you don't do what the agency says, the court is there to enforce the agency demands by either ordering you to do it or taking your children away from you if you fail to do it. 

And then finally, the most powerful and harshest thing that can happen is that ACS can remove your children from your care right then and there when they investigate. Every child protective agency in every state has what are called emergency child removal powers. They can take your children out of your home, place them with strangers if you have no relative to take them, and then give you a date to appear in court. 

And remember, the vast majority of parents don't have access to a lawyer until they're brought to court. People who hear about this process for the first time and perhaps have never had to deal with this agency themselves will say, "Oh my gosh, I would call a lawyer right away." And it's like, right, because you can afford to, and you might have one that you know to call. But if you have to rely on the system to assign you a lawyer, because you can't afford to retain one privately, you're not going to get that lawyer until your first appearance in court.

One of the major innovations that we made in our practice over the last couple of years was to create a hotline so that parents could call us at that moment. I think this has been the most effective in changing the trajectory for these families. When I first started doing this work, I was meeting parents whose children had been taken and they hadn't seen them in weeks. Now, when they file against you in court, if you're assigned to our office, the first thing we are going to do is figure out if we can ask for a hearing to get the children either immediately returned or returned soon. I think that's where we have had the most impact – we litigate those hearings often and we often win them. 

Most people assume that if a child has been taken away by the government from their parents, that they must be experiencing incredible abuse at the hand of that parent. But what we have found is that about 24% of children who are taken, go right back home once the judge reviews that decision and almost all children go home eventually. And that's because that is when the parent finally has a lawyer and the case is heard by a judge and the parent can put forth their side of the story. 

Many of the removals we see are because of mistakes, miscommunication, misinformation, and ACS not doing a good enough job to prevent the removal in the first place.

I wonder what sorts of things they look for when they decide to remove children - and how poverty plays a role in determinants. 

I think that when we look at drugs, we can see what the system is truly about. We know that if all the children were taken away from all the parents who use drugs, there'd be a lot more white, wealthy children living in the foster system than there are right now. So there's something else going on here than keeping children safe. 

When it comes to who is investigated and for what reasons, what we see is that the vast majority of the parents of children in the foster system have not abused or abandoned their children. They are often not even charged with abusing or abandoning their children. 

The vast majority of parents are charged with something called neglect, and the way neglect is defined by every state law is very closely intertwined with poverty.

 In New York, it's defined as the failure to provide your child with the minimum degree of care. Well, what's the minimum degree of care? To one judge, strict parenting with a spanking does not fall beneath the minimum degree of care. To another judge, it might. To one judge, using marijuana, might not fall beneath the minimum degree of care. To another judge, that might. The problem is that it is such a subjective standard. It's not like the criminal legal system where you have crimes that are defined by a penal code - these child protective cases leave much more room for discretion. It often comes down to the subjective child-rearing views of the observer - first the caseworker, then the prosecuting attorney, and then the judge. That's one problem. 

Children below the poverty line are 22 times more likely to enter the foster system. That is one strong indicator of what these cases are truly about.

The cases we see are mostly about food insecurity, housing insecurity, not having safe, and adequate childcare- all the things that we've decided, as a country, to not provide to struggling families. This reflects our country’s unwillingness to provide true support to struggling families- the support they need to raise healthy children and to rectify past and present racism in how certain families have been supported while others have not.

Right now, our country is calling to defund the police. That is because we understand how they are hurting and harming people who live in poor communities and who are predominantly Black and brown. The so-called child protection system can be understood as delivering the same harm. The same communities that are overly surveilled by the police, that experience higher rates of arrest, are the same communities that experience disproportionately concentrated surveillance by the so-called child protective system and experience harmful family separation at the hand of the government.

You can take maps of neighborhoods and where you will see higher arrest rates, you will also see greater child protective case concentration.

You will see that in the same communities where there are greater higher rates of arrests and rates of incarceration, you will also see higher rates of child protective surveillance and family separation. The systems are cut of the same cloth. It is because of WHO lives there and not WHAT is happening there.

Both systems are used to surveil and control classes of people.

Do you think there's part of ACS operating in good faith?

I think that ACS is full of people with very good intentions.

But systems that are built on the good intentions of some for others are the most dangerous. The fact that the intentions are good often serves to block a serious interrogation of their impact.

What is the disconnect between ACS’s stated mission and what happens in practice? 

When we start to find answers to why we have a system of mass incarceration, we uncover the same reasons that we have a foster system that looks the way it does. To say "Oh, but there are children who are abused. So this system is necessary” is the same thing as saying that, well, there are folks who commit crimes, so the industrial prison complex is necessary. I don't think that's true. I think we can reimagine a completely different response to families that are struggling with caring for their children. And we have never done that. While I think that ACS and other child protective systems across the country might be made up of many highly motivated people to do right by children, they are still playing a role in a system that is the product of racism in this country. It is a system that keeps certain populations controlled and down. 

The reason why I think people have a much harder time understanding this system that way is because they don't really understand exactly how it operates. We're waking up to the fact that putting someone in prison for the third time, caught with marijuana in their pocket, is not the response of a civilized community. Well, why then is separating children from their mother because she needs treatment for a mental health issue imaginable? It would be unimaginable for families of privilege to be separated from their children and to have that relationship legally severed forever because the parents are experiencing an issue. 

It is unimaginable. I keep coming back, thematically, to paternalism, and this weird game of morality – which immorally devastates children in this case. 

This is a system that drips in paternalism. I often think of it as the suitability police in many ways. There's so much discretion in the definition of what is neglect. 

And then you have it left up to individual subjective discretion to determine whether the situation before them falls within it, that leaves an incredible amount of room for one's own bias, and one's own prejudice to seep into those decisions. 

The kinds of allegations they bring against, predominantly mothers, mind you, are infused with judgment, and infused with ideas of what is suitable and what is not. One of the challenges that our lawyers, social workers, and advocates have while doing these cases is trying to address that before a judge - like, are you really raising the fact that she uses marijuana? We know that the parents in these other higher-income neighborhoods are also using marijuana and no one would dream of knocking on their door and dragging their child out of the house. It just would not happen. So how do you justify this as to why?

I just don't think that you can ever escape the fact that this is a system, regardless of the purpose that built it, regardless of what people's individual motivations are who work there, it is a system that ultimately surveils and controls populations of people. It doesn't really matter what they meant to do with it. That is how it operates.

We know that abuse and neglect are equally likely in all income brackets, among all races. Yet this system has profound race and income disproportionality issues. Part of the reason for it is that our country has always equated being poor with individual failure or personal deficit, rather than the failure of our government to support all people equally.

Poverty has always been viewed as an individual fault. That gets us to another piece of the system that is so irrational when you actually interrogate it. You meet a family and you learn that the mother doesn't have childcare, so she's going out to her back to work welfare appointments, and leaving her children home alone in the apartment. And she's doing that because if she doesn't make those appointments, she will lose her benefits, which then would hurt her entire family. So she's taking a calculated risk. The response then to her is not to get her the childcare, it is to send her to a parenting class, to teach her not to leave her children at home, which guess what? I think she knew that. Second of all, she'll probably end up, because her children have been removed from her, losing the very benefits she was working so hard to preserve because now her household has been reduced, so she no longer has the children in her care. And then we then give the money to the foster parent so that the foster parent has money for childcare. That's why it is a punitive system, even though it claims not to be. It claims to be a therapeutic system. It claims to be a system that's helping families take care of their children. But how? How is that response therapeutic? The trauma to those children who then have to go live with a stranger, maybe transfer out of their schools, maybe only see their mother once a week at a foster care agency in a room under the watchful eye of a case planner, where she can't naturally parent them and love them, that digs a wound that never heals.

And yet we're talking about a situation where someone needed a babysitter. They need to believe there's something so fundamentally flawed about this woman for not having the resources for childcare that that's the response. And it's so infused throughout the entire system from case planner right up to judge that it's hard to understand quite frankly, how it still exists.

I don't understand how it can still exist today. I only hope that with these real cries for defunding the police, we turn our eye to also examine this system as well, because it operates the exact same way, but it's almost more sinister in the sense that it is children, not the adults, who serve the time among strangers and in institutions.