The bar association representing tens of thousands of New York attorneys has taken a first-ever stance against racism in the child welfare system, endorsing specific calls for change that include revising decades-old federal laws.
The New York State Bar Association resolution, approved Saturday, acknowledges the harms the American child welfare system has visited disproportionately on Black families, linking them to the ruthless family separation that occurred during more than 200 years of slavery.
In a section offering historical perspective, the bar association describes “the impact of the child welfare system on the ‘lives of people living in poverty and Black, American Indian and Latinx communities.’” The resolution goes on to state: “With regard to Black families in particular, the roots of the child welfare system’s threat to family integrity in the American institution of chattel slavery from colonial times onward is well documented. Enslavers did not respect or even acknowledge the family unit of the people they enslaved. They regularly and cruelly separated Black children from their families with no recognition of the family unit.”
While the report and resolution focus specifically on Black families, the association noted that structural racism in the child welfare system “significantly impacts families of many backgrounds,” and calls for attention and action to inequities suffered by all such groups.
In its report, the association committed to taking action to protect the rights and well-being of Black children and parents through several key reforms. The attorneys call for “narrowing the front door” of foster care, in part by requiring that child protection workers give parents a Miranda-style warning of their rights upon first contact — a controversial proposal pushed by advocates in recent years. They want callers to the state child maltreatment hotline to provide their names, if only confidentially, when making reports, and hospitals statewide to obtain written consent before drug testing pregnant and postpartum women, barring an emergency.
“This report details the travesty of unfair and unjust treatment of Black children and parents in our child welfare system,” T. Andrew Brown, the state bar association’s president said in a statement. “We must take a hard look at a system that is inherently stacked against families of color.”
In a statement sent to The Imprint, a spokesperson for the state’s Office of Children and Family Services spoke in notably blunt words.
“The New York State Office of Children and Family Services (OCFS) applauds the New York State Bar Association’s report and public acknowledgment of the collective body of work needing urgent attention to address systemic racism and oppressive policies and to strive toward a fair and just system for families involved in the child welfare system in our state,” Jeannine Smith stated. “OCFS believes deeply in advancing the implementation of best practices that value and preserve Black families, and we work to instill equity and fairness in all child welfare laws and agency policies.”
Smith went on to note that “while there is more work to be done, OCFS has been at the forefront in leading a number of equity and anti-racism efforts.” Those include “being the first and only state in the nation” requiring that discussions about whether to remove children from their homes be done in a “colorblind” manner and supporting the launch of a guaranteed income pilot program for families involved in the child welfare system.
State data makes clear the outsized impact of the child welfare system on Black families in New York. Black children made up more than one-third of children admitted to or already in foster care in 2020, despite the fact they represented just 15% of the state’s child population.
The lawyers’ report is just the latest indication of the pressure to reform business-as-usual practices that child welfare agencies in some parts of the country are now facing. Late last month, a new legal advocacy center announced its creation, stating that it will focus on filing class-action lawsuits against New York City’s Administration for Children’s Services and other government agencies that separate Black and Latino children from their families at disproportionate rates.
The influential New York State Bar Association, which represents more than 70,000 lawyers, has formally resolved to promote policies that “value and preserve Black families; and bring about the repeal of child welfare laws and policies enacted upon racist goals and assumptions that disproportionately impact Black families, or result in unequal consequences.”
The acknowledgement is believed to be the first of its kind from a state bar association, the organization said. Accompanying the resolution is a report tracing the central role of race throughout the development of the modern child welfare system.
Susan Jacobs, a former member of the state bar association who established a pioneering New York City-based parent defense firm, said the report is noteworthy for its “unequivocal condemnation of the racist status quo of the child welfare system in New York State.” The former executive director of the Center for Family Representation added: “It is unusual in my experience for reports like this — even when they are critical and surface problems in systems — to be as clear-eyed and forthright.”
The bar association also calls for a significant increase in pay for the attorneys who represent children and indigent parents in Family Court. The number of such lawyers has continued to decline due to pay rates that have been frozen since 2004, leaving attorneys with caseloads that far exceed standards recommended both by state and national legal experts.
Elected leaders in New York are now debating whether to double the pay of Family Court attorneys in the final state budget, expected later this week.
In addition to more support for parents’ lawyers, the bar association describes the need to prevent families from being separated simply because they lack resources — such as stable housing, transportation and child care. Nationally, 61% of children who were suspected to be the victims of child maltreatment were determined to have experienced only neglect, according to 2019 data from the federal Children’s Bureau.
“Our effort is to reduce the impact on child welfare so that the black family unit can be preserved and not broken up,” said Susan Lindenauer, co-chair of the bar association’s Committee on Families and the Law, in a press release. “Poverty should not and cannot be the premise for punitive child removal. You are punishing children for the poverty of their parents. We are at a pivotal moment to be a force to change a racist system.”
Two pieces of federal child welfare policy need to be revised or repealed, the bar association states. They include the 1974 Child Abuse Prevention and Treatment Act (CAPTA), which authorizes federal grants for states to respond to child abuse and neglect, and the 1997 Adoption and Safe Families Act, which aimed to reduce the number of children languishing in foster care and speed their path to permanent homes.
The latter law has been the subject of renewed criticism for its timelines requiring the termination of parental rights once children have been in foster care for 15 out of 22 months. The bar association underscores the critique, calling for an amendment of those timelines and ensuring a parents’ rights are never terminated unless it is in the child’s best interest.
The report also highlights long-standing criticism that, by including child “neglect” as a category of harm requiring mandatory reporting, CAPTA exacerbated disproportionate impacts on families of color. Allegations of child neglect, such as homelessness and lack of food, can be closely linked with the multigenerational poverty that several recent major studies confirmed Black families face at far higher rates than white families.
Attorney Jacobs said she expects attorneys, judges, child welfare leaders and other major associations around the country to take note of the bar association report.
“One can think New York State and city are evolved or sophisticated in how services are delivered and how much money is spent. But this report really belies those assumptions,” she said. “Anyone who has that notion or default understanding has to sit back on their heels a little bit when they read this.”