New York City’s child welfare agency illegally took a 6-day-old baby away from his father, according to a recent decision from a federal appeals court that legal experts say could affect families across the city.
The United States Court of Appeals for the Second Circuit ruled last month that the Administration for Children’s Services violated the baby’s constitutional rights when one of its caseworkers removed him without first seeking permission from a judge, prompting a nearly three-year ordeal to reunite parent and child.
The recent ruling could curb a practice that Administration for Children’s Services data shows caseworkers regularly use when parents are accused of abusing or neglecting their kids: taking children from their homes without a court order. It comes as several parents are suing the agency in federal court, alleging that caseworkers unlawfully took their children through similar tactics.
“That moment of a family being torn apart stays with the family,” said David Shalleck-Klein, executive director of the Family Justice Law Center, which represented the father in his appeal. “It is a scar that remains with them.”
The father, identified in court documents as K.W., declined to be interviewed. An ACS spokesperson said the agency and the Law Department are reviewing the ruling.
‘It’s not the exception’
When an ACS caseworker believes a parent is abusing or neglecting a child, the agency is supposed to ask a family court judge for permission to take the child away while it investigates. If a judge agrees that the child cannot safely remain with one or both parents, the court can order officials to remove the child from the home.
If ACS staff believe a child faces imminent danger and there isn’t enough time to get a court order, the agency is allowed to take the child immediately through what’s called an emergency removal. Agency spokesperson Marisa Kaufman said in a statement that emergency removals are only considered after “all other options have been ruled out.”
But the agency’s data show caseworkers routinely use these types of removals to take kids from their parents. About half of family separations in abuse and neglect cases are conducted through emergency removals, rather than through a court order, according to ACS reports.
“Of course, some children need to be removed from their parents, and of course, a small subset of those need to be done — and the law permits them to be done — without going to a judge first,” Shalleck-Klein said. “ But we see in the numbers year after year after year after year that it's not the exception. It's the default rule.”
Mayor Zohran Mamdani announced a new commissioner for ACS in April. The mayor’s office declined to comment.
Melissa Friedman, an attorney in charge at the Legal Aid Society who represents children in family court, said emergency removals often traumatize the children she and her colleagues represent. Younger children may experience more bedwetting, nightmares, tantrums and self harm, she said, while older kids often act out. At least one child compared the experience to being kidnapped, she said.
Emergency removals also take a toll on parents. In K.W.’s case, ACS took his baby through an emergency removal because the child’s mother had been accused of neglecting and abusing other children with different fathers, according to the U.S. Court of Appeals ruling.
K.W. was not accused of any wrongdoing, but it took almost three years for him to be reunited with his son. K.W. was later diagnosed with dysthymic disorder, a type of chronic depression, the ruling states.
The federal appeals court ruled that the emergency removal was illegal, because the child was not in imminent danger in his father’s care, and the agency had enough time to ask a family court judge for a removal order. The federal court also found that ACS violated the child’s rights by lying or leaving out information in paperwork that ultimately led a judge to approve the separation. The caseworker who took the baby did not mention that K.W. cared for the baby in the first days of his life without any problems, or that the caseworker interacted with him multiple times and raised no concerns about the child’s safety. The caseworker should not be shielded by qualified immunity, the decision said.
Other lawsuits challenge ACS emergency removals
At least nine lawsuits have sued ACS in recent years, alleging the child welfare agency violated families’ rights when they took their children through an emergency removal.
In March, Meredith Trainor accused the agency of constitutional violations for pulling her 11-month-old daughter from her arms and keeping them apart for five days, until a judge found the child was safe in her mother’s care. Trainor told Gothamist at the time that caseworkers wouldn’t let her breastfeed before taking the baby or tell her where they were going. She remembered hearing her daughter scream as caseworkers carried her away.
“I felt so helpless,” she said.
Last month, several families filed a proposed class action lawsuit against the city accusing ACS of routinely separating parents and children through emergency removals when there is no immediate risk to the children. In about a quarter of cases, a judge returns the child to a parent at an initial hearing, according to the lawsuit. ACS does not publicly report data on the total number of kids returned to their parents at the end of a family court case.
“By removing first and seeking judicial approval only after the family has been torn apart, ACS bypasses fundamental constitutional protections, exploits well‑documented decision‑making biases favoring family separation, and inflicts lasting harm on children and families,” states the lawsuit, which was filed by the Family Justice Law Center, the Center for Constitutional Rights and the Legal Aid Society.
The legal services groups said in their lawsuit that more than 90% of affected children are Black or Latino. Their lawsuit said ACS has done nothing to meaningfully fix the issue, despite an abundance of data, public hearings and investigative reporting, and urges a federal court to order the agency to change how it operates.
Kaufman said ACS is reviewing the lawsuit and noted that children are not removed from their homes in more than 97% of child protection cases.
“ACS is committed to keeping families together whenever that is safely possible,” she said in a statement.
The plaintiffs in the case declined to be interviewed through their attorneys.
ACS currently relies on a “better safe than sorry” approach that aims to keep kids safe but hurts them in the process, Friedman said. While some children she represents are relieved to be separated from their parents, she said, the “ the vast majority of children are traumatized and harmed by the removal.”
