The child welfare system could soon become fairer

Under legislation that state lawmakers passed in June by overwhelming margins, New York’s system for tracking child abuse allegations could be dramatically changed. 

It does not take much to get on a state list recording allegations of child neglect or abuse. An anonymous tip to a state hotline will do. By law, local child welfare agencies like the Administration for Children’s Services in New York City have to investigate every allegation they receive within 24 hours. If a caseworker finds “some credible evidence” during such an investigation, then a parent or guardian has their name added to the Statewide Central Register of Child Abuse and Maltreatment – which can limit their future employment opportunities and subject them to further scrutiny from the child welfare system for as much as 28 years.

If Gov. Andrew Cuomo signs the new legislation, state law would change in two important ways. First, it would raise the standard of proof necessary to substantiate allegations of child neglect from “some credible evidence” to a “preponderance of evidence.” Other changes aim to make it easier for parents to get off the register much sooner, by allowing them more opportunities to appeal their listing and conditionally sealing their records after eight years. 

Supporters of the reforms say these changes represent significant changes in a child welfare that remain slanted against the low-income people of color – but more remains to be done.

To understand the effects of the bill, it is important to note the difference between child abuse, which involves serious physical harm or sexual abuse, and child neglect, which basically means in practice that someone is a bad parent. The bill passed by the Legislature will not affect people accused of abuse (where the harm to a child is self-evident) whereas the bill does aim to help people accused of neglect – where the potential harms can be much more speculative. “In many instances, neglect is a very subjective situation,” said state Sen. Velmanette Montgomery of Brooklyn – chair of the Committee on Children and Families – who sponsored the reform bill along with Assemblywoman Ellen Jaffee of Rockland County. “Creating a stronger standard of evidence was extremely important.”

The current standard allows for caseworkers to allege neglect as long as they find “credible evidence.” This could be a child appearing at school in dirty clothes and unkept hair. Or, it could be that a parent admitted to a caseworker that they smoked marijuana. There is no shortage of pretexts that could lead a caseworker to substantiate a report – whether it originated with an anonymous tip or a mandated reporter like a doctor, teacher or social worker. If a caseworker decides that the situation could harm the child, then they can decide to substantiate the report even if more evidence suggests a parent did nothing wrong. 

Caseworkers can remove a child from their home on an emergency basis if they feel there is an imminent danger to a child, a move that a Family Court judge must approve within 24 hours. Cases of neglect, however, are much more likely to result in the parents being required to accept social services and future home inspections that aim at resolving the underlying issue rather than placing a child in foster care. Parents have an incentive to cooperate, even if they believe the charge is unfair or unfounded, because ACS and other child welfare agencies could attempt to remove the child from the household through the Family Court system. Even when parents do everything that is asked of them, that does not remove their name from the register. 

To do that, a parent needs to follow a complicated process that the recently-passed legislation would change. Going forward, there would be fewer parents get included on the list to begin with by requiring a “preponderance of evidence” as the standard of proof, meaning there is more evidence to substantiate the original allegation than there is to disprove it. Under current law, any allegation of neglect or abuse is kept on file until “0 years after the 18th birthday of the youngest child named in the report, which means that a record could be on file for nearly 28 years if an 17-year-old child and a baby are both involved. 

While lawmakers and some advocates are in favor of changing the standard of proof, others say the legislation goes too far in helping people accused of child neglect. “That may not be such a great idea in terms of child safety in general and protections for children,” said Stephen Forrester, director of government relations and administration at the New York Society for the Prevention of Cruelty to Children. “That's our utmost concern – always.”

The bill would conditionally seal reports after eight years if no other allegations are found to be “indicated,” the child welfare system equivalent of being found guilty of an allegation of abuse or neglect. If the bill becomes law, unfounded accusations would no longer keep an adult from becoming a foster or adoptive parent, or work with children in early childhood programs because it would be harder to get their names on the SCR. Even if a parent is found to have neglected a child, the bill gives them more opportunities to get off the registry if they can show that they have addressed the underlying conditions that got them there, whereas current law requires them to go through a much more laborious process to get off the registry. The legislation would also allow people on the registry to seek to seal their listing every two years even if a report is validated.

Lawmakers have yet to deliver the bill to Cuomo though the bill passed in June. This is because the governor typically requests that lawmakers hold off while the administration conducts a legal review of legislation, which a spokesman for Cuomo confirmed is currently the case with the child welfare bill.

There have been many news reports, reports and books published over the years that have highlighted how the child welfare system affects families of color at much higher rates than white people. But changing that system has been hard given the political realities of state politics.

The Democratic takeover of the state Senate after the 2018 elections following years of Republican control in general has made it easier to pass bills, especially those affecting Democratic constituencies such as people of color. The separation of migrant children from their families at the U.S. southern border has also brought attention to the pain caused by family separations in the child welfare system in New York City. Meanwhile, evolving social mores on marijuana have brought more attention to how uneven enforcement of marijuana laws lead to ongoing disparities in enforcement of child welfare laws. 

While ACS cannot by law use marijuana as the sole basis for alleging child neglect, caseworkers have significant leeway to allege that the use of marijuana and other substances affects child safety – as an April New York City Council hearing highlighted. Shakira Kennedy, a woman of color, told the council that she used pot to treat nausea during her pregnancy. She told her doctor about this during a prenatal visit and the doctor then subjected her to a drug test without her consent and reported the results to ACS. Caseworkers came to the hospital three days after she gave birth to announce that she would have to attend a drug treatment program, or risk losing her newborn twins. “I do not drink, I don’t smoke cigarettes,” she said at the hearing, according to Gothamist. “I’m a hard-working, tax-paying citizen and none of that was taken into consideration.”

Cases like Kennedy’s demonstrate how low-income parents of color are often held to different standards than their white counterparts. Rich white parents can blog about the benefits of marijuana use, whereas such an admission from a black or Latino parent can result in the loss of their children or months of social services that may or may not address relevant parenting issues. These disparities more generally reflect the same disparities separating white people from people of color, and rich from poor across the city. “If you are living in public housing and you smoke marijuana it’s very different penalty than if you live in Columbia University housing and you smoke marijuana,” said Montogmery. A state database of child welfare reports does not even track how substance abuse factors into investigative outcomes, making it difficult to know to what extent marijuana fuels dramatic racial disparities in the child welfare.

Black children are 5.2 times more likely to get reported to the Statewide Central Register of Child Abuse and Maltreatment compared to white children, according to 2010 data from the state Office for Children and Family Services. Reports about black children are 6.6 times more likely to be validated and black children overall are 13.4 times more likely to end up in foster care. New York City has made progress in recent years to decrease the number of children in foster care while addressing racial bias among child welfare workers, who are overwhelmingly black and Latino. ACS investigates about 60,000 reports of alleged child abuse and neglect each year. The total number of children in foster care has dropped by nearly half from 2009 to fewer than 8,500 in 2018 today, according to ACS. While racial disparities remain, the agency has also implemented anti-bias training among its frontline staff. “Yes, we have to make sure that kids are safe,” ACS Commissioner David Hansell told NYN Media earlier this year. “That is first and foremost our goal, but in the vast, vast majority of cases, we’re able to do that in a way that is supportive and collaborative with the parents that we are working with.”

Montgomery said that lawmakers, parents and activists will convene in the upcoming months to discuss additional reforms they could pursue in the upcoming legislative session. This includes an Oct. 25 roundtable discussion in the Hudson Valley. Another meeting on Long Island is also in the works. The bill that passed the Legislature this past session is “a small step” in the pursuit of much larger reforms that parent advocates want implemented, said community activist Joyce McMillan, a former director of programming and a parent advocate at the Child Welfare Organizing Project, who had a leading role in convincing lawmakers to pursue reforms this year. 

Advocates like McMillan also want lawmakers to pass legislation that would provide legal representation for parents caught up in the child welfare system. They want child welfare agencies to conduct a review of past cases involving “credible evidence” that did not fully reflect all the evidence at hand, rather than the case-by-base approach currently pursued by ACS. And, perhaps more than anything, activists like McMillan want lawmakers in the upcoming session to address the underlying cause of the ongoing issues that can stigmatize a parent of color for challenges that seldom get a white parent labeled as neglectful. “We cannot talk about child welfare without talking about racism,” said McMillan. “Neither in 1817 – when we were on the slave lot on the plantations – and today in 2019 do parents have any due process or choice in the matter and that is problematic.”

Correction: The legislation would allow people to seek to seal their listing every two years. The time frame was incorrect in an earlier version of this story.