The Constitution Prohibits Unreasonable Searches. Child Welfare Investigators Routinely Conduct Them.
In her Pulitzer Prize-winning book Invisible Child: Poverty, Survival & Hope in an American City, journalist Andrea Elliott concludes with a poignant observation: In New York City, she writes, “[t]o be poor is to be surveilled.”
The child welfare system is at the hub of a vast surveillance network. A recent ProPublica/NBC News investigation found that the New York City Administration for Children's Services (ACS) conducts roughly 50,000 investigations every year, with an overwhelming and disproportionate impact on Black, Brown, and low-income communities.
Despite determining that over two-thirds of its 50,000 investigations each year are baseless and deciding to file charges against parents in only 10 percent of investigations, ACS carries out searches of homes in virtually all investigations, even for those where the allegations are entirely unrelated to the condition of a home.
Although New York law provides a procedure for ACS to apply for judicial approval for such searches, the agency disregards legal procedures. It obtains court authorization in fewer than two-tenths of one percent of all searches – meaning that, as a matter of Fourth Amendment law, over 99.8 percent of ACS’s searches of families’ homes are “presumptively unreasonable” and therefore unconstitutional.
To avoid obtaining judicial approval, ACS workers adopt coercive tactics to enter homes and conduct invasive searches. ACS frequently uses intimidation to obtain “permission” to search a home. Caseworkers actively mislead parents about the agency’s authority. They threaten parents that their failure to let ACS into the home could lead to their children being taken from them and placed with strangers in foster care. They lie about the Constitution’s warrant requirement and refuse to inform parents about their constitutional rights. After illegally obtaining entry into people’s homes, ACS workers strip search children, read labels in medicine cabinets, rifle through dressers in bedrooms, and open refrigerators and cabinets.
ACS’s invasive practice of unconstitutionally searching families’ homes and children’s bodies is just one piece of a series of horrific experiences for vulnerable families. ACS workers frequently wrongly separate children from their parents. While the agency is authorized to remove children under emergency circumstances, they exercise this extreme power cavalierly, often when clearly unjustified under the demanding legal standard. Once the courts scrutinize these so-called “emergency” removals, they frequently decline to approve them. According to a recent report from the Center for New York City Affairs at The New School, in 2022 judges refused to approve close to 40 percent of child removals ACS claimed were emergencies. That translates to hundreds of families every year being subjected to unnecessary – and immensely scary and traumatic – separations. Yet, with almost no accountability for these reckless actions, ACS continues its entrenched damaging practices.
This behavior is not only illegal; it also devastates children and parents. The Trump Administration’s zero-tolerance immigration policies that tore thousands of children from their parents at the border demonstrated the injustice and inhumanity of forcibly separating families. Responses from psychologists, pediatricians, and policymakers shed light on the irreversible consequences to children.
Even when separations are temporary, their psychological consequences are not. Removals disrupt children’s connections to their parents, siblings, friends, schools, and communities, ravaging their mental health and emotional development. Removals shatter parents’ most basic ability to protect and care for their children, while branding them as inadequate.
Many families with experience in the child welfare system and their legal advocates contend that ACS’s widespread actions disregard families’ constitutional rights. What are the consequences of such careless disregard for constitutional protections for families? How does the confluence of race and poverty shape this invasion of families? And what can be done about it?
The Family Justice Law Center, a newly established organization I head, is designed to bring strategic litigation on behalf of families to challenge and rectify abuses in the child welfare system, including violations of families’ constitutional rights. This type of civil rights litigation has been one key component of campaigns to stop other systematic deprivations of vulnerable people’s rights and to develop strength in communities. We are inspired by the expanding work of activists around the nation to build upon this heritage in demanding that the child welfare system cease its invasion of the basic rights of families to be secure so that they may thrive.
And you can find out more about the important issues our work touches on at the April 25 panel discussion at The New School described below. The panel will feature two-time Pulitzer Prize winning journalist and author Andrea Elliott; civil rights professor of race, gender, and the law Dorothy Roberts; community leader Joyce McMillan; and former commissioner of the New York City Department of Social Services Steven Banks.
David Shalleck-Klein is the founder and executive director of the Family Justice Law Center.
Photo by: ACLUVA
