Under a noteworthy settlement agreement today, New York City’s child welfare agency has ended a lawsuit alleging that child welfare workers forcibly removed a woman’s newborn baby based solely on a positive test for marijuana that she did not consent to.
The settlement of roughly $75,000 plus attorney’s fees will be awarded to the mother, Chanetto Rivers, a Black woman in her mid-30s who alleged discrimination. Resolution of the case against the Administration for Children’s Services (ACS) was relatively quick. It was first filed less than four months ago in a Manhattan federal court.
“I didn’t just bring this lawsuit for myself, but for every Black family that ACS has ripped apart,” Rivers said in a statement released by her lawyers today. “They know what they did was wrong.”
A spokesperson for the city’s child welfare agency, Stephanie Gendell, emphasized in an email that a situation that “indicates” whether abuse or neglect has taken place is evaluated on a case-by-case basis.
“A case should not be indicated solely because a parent is using marijuana, but instead CPS should assess the impact, if any, on the safety and well-being of the child,” Gendell wrote.
Rivers was represented in her lawsuit by the nonprofit public service Bronx Defenders and the private legal firm Arnold & Porter. Her lawyers accused the agency of preferring to “operate in secrecy and hide from accountability.”
They noted that the child maltreatment investigation that ensued after Rivers gave birth in August 2021 continued for months, despite the fact that the state’s Marijuana Regulation and Taxation Act had been fully enacted at the time, legalizing recreational use. The law also stated that use of cannabis — which has been legal in New York City since March 2021, six months before Rivers gave birth — cannot be used as the sole reason a child is removed from a parent.
In an interview, Niji Jain, lead counsel in the case and director of the Impact Litigation Practice at Bronx Defenders, described Rivers’ harrowing ordeal: It began with a CPS investigation just three days after her son’s birth, and continued when she was informed that the child welfare agency would be moving to place the baby in foster care.
“Just days postpartum, she had to travel in physical pain every day, to go to the hospital to be able to visit with her baby, because they wouldn’t let them be together,” Jain told The Imprint.
The lawsuit on behalf of Rivers further alleged the actions were taken “not because ACS was trying to protect” the infant identified as “TW,” but “because Ms. Rivers is Black.”
“I didn’t just bring this lawsuit for myself, but for every Black family that ACS has ripped apart.”
— Chanetto RiverS
Since 2020, NYC Health + Hospitals has sought to curb drug-testing of new and expecting mothers in public hospitals, a practice that can lead to newborns being placed in foster care and severed from their moms at perhaps their most delicate stage of life.
Outlining the policy and new practice three years ago, Mitchell Katz, the president and CEO of New York City’s Health and Hospitals Corp., stated that substance use disorders should be treated “as medical conditions, not moral problems.” The city’s 11 public hospitals now need written informed consent for toxicology testing during pregnancy.
Marijuana use is specifically mentioned in an April 2019 ACS policy that states: “Positive marijuana toxicology of an infant or the mother at the time of birth is not sufficient, in and of itself, to support a determination that the child is maltreated, nor is such evidence alone sufficient for ACS to take protective custody of (remove) a child or file a case in Family Court.”
Yet according to Rivers’ lawsuit, even when two judges ordered the agency to reunify mother and infant, workers continued to interfere in the mother’s parenting and subjected her to “needless court proceedings” for months.
“We are glad that Ms. Rivers was able to call attention to ACS’s deplorable history of racial discrimination against marginalized families,” Jain said. “ACS continued to rely on outdated racist stereotypes and tropes about Black parents.”
The issue raised by Rivers’ lawsuit is not uncommon. A Pennsylvania study published in April in the Journal of the American Medical Association analyzed more than 37,000 people’s medical records. It found that hospitals were disproportionately drug-testing Black mothers who had recently given birth, compared to white mothers — even though they were less likely to test positive.
“This is far from the only instance in which ACS has taken incredibly overbroad and harmful actions against a parent and a family,” said Melissa Moore, director at Drug Policy Alliance, a national organization working to end the punitive effects of the nation’s so-called War on Drugs.
Moore added that non-consensual testing and the subsequent CPS reports they trigger result in disproportionate harm in low-income and communities of color, destroying trust between parents and pre- and postnatal caregivers.
The legal team that defended Rivers described the settlement as the first-of-its-kind lawsuit against the city’s child welfare administration to enforce New York’s cannabis legalization law.
“Ms. Rivers’ case is the first civil rights lawsuit to seek accountability for a family separation under that provision of the law,” Jain stated.
Although advocates see this as a win, they acknowledged that the agency has firmly denied any admission of guilt. What’s more, they say, the case’s swift resolution limited the possibility of the lawsuit resulting in systemic reforms.
“We need clearer and stronger guardrails both at the city level and at the state level against this type of non-consensual test and report practice,” Moore said, “and so much more.”
CORRECTION: Sept. 8, 2023. An earlier version of this article incorrectly referred to Rivers’ baby as a daughter not a son.
