by Eli Hager
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The New York State Legislature could by the end of this week pass groundbreaking legislation requiring child protective services agents to read people their constitutional rights, just like the police have to do.
But New York City’s Administration for Children’s Services, despite publicly claiming to support the “family Miranda warning,” has in recent weeks quietly proposed gutting the measure, according to eight lawmakers, staffers and lobbyists involved in the negotiations.
The agency even lobbied for the removal of the word “rights” from the bill text.
And the state Senate’s Democratic majority leader, Andrea Stewart-Cousins, has repeatedly blocked the popular proposal (it has dozens of co-sponsors), throwing into question whether it will get a full vote before the legislative session ends on Friday.
Last fall, a ProPublica investigation found that ACS caseworkers — without a warrant — conduct full home searches of more than 50,000 households every year across New York City, disproportionately affecting Black or Hispanic and low-income families. Despite the Fourth Amendment’s protection against unreasonable searches and seizures, these government officers rifle through families’ refrigerators and medicine cabinets and inspect children’s unclothed bodies without informed consent.
They conduct these warrantless searches even if the allegation of potential child neglect they are investigating has nothing to do with the condition of the home, such as a kid missing too many days of school. They also sometimes use manipulative tactics, including threatening child removal or calling the police, to get inside residences, according to dozens of interviews with caseworkers, families and attorneys.
The agency ultimately finds a safety situation requiring removal of a child from the home less than 4% of the time.
Lawmakers in Albany repeatedly cited ProPublica’s reporting this spring as they reintroduced legislation, which had failed in the past, creating a Miranda-style warning to be read aloud by child protective services agents like cops do on “Law & Order.” Caseworkers would have to notify parents of their right to deny entry to their home, to have a lawyer present, to be told what they’re being accused of, and to say no to releases of their family’s personal information and to drug or alcohol tests without a court order, while also specifying that anything they say can and will be used against them.
The bill had been gaining momentum in the Assembly, passing unanimously out of that chamber’s children and families committee as its chair, Andrew Hevesi, flanked by grassroots activists, asked, “When in life do you want Americans not to know their rights?”
He continued, “The only time you need them not to know their rights is when their rights are about to be violated.”
The proposed law would not create any new rights, but rather inform families with less education or ones without a lawyer of the rights they already have. It also would not affect the ability of caseworkers to enter a home without a warrant if a child is in danger or if there are other exigent circumstances.
But then ACS sent Senate leadership staff revisions to the legislation that would have removed mention of several of the rights, neutering the proposal to such an extent that advocates could no longer support it, many said in interviews.
Maddy Zimmerman, spokesperson for Democratic state Sen. Jabari Brisport, the bill’s lead sponsor in the Senate and chair of its children and families committee, said that accepting ACS’ version would have been the same as passing nothing at all. She and a half-dozen others who saw the agency’s suggestions said the edits included not only removing the word “rights” but also cutting the sections about informing parents that what they say can be used against them, that they don’t have to agree to body searches of their children without an order from a judge, and more.
Brisport said in interviews with ProPublica that he tried to put the bill, without the ACS changes, on his committee’s agenda — three times. But on each attempt, he said, Stewart-Cousins, the Senate’s majority leader and president pro tempore, removed it from consideration without telling him why.
Stewart-Cousins could still revive the measure and give it a chance of passing this week, provided that the Assembly continues to move it as well.
It is not clear whether ACS has effectively lobbied her or if she has a philosophical objection to the proposal.
Stewart-Cousins’ staff did not respond to calls and emailed questions about her position on the matter.
In recent years, she has highlighted her achievements on affordable housing, pre-K, the sealing of criminal records, bail reform and not criminalizing poverty — all issues that affect many of the same constituents who would be protected by the family Miranda warning.
But advocates say that progressive politicians, not just in New York but across the country, have so far failed to understand how fighting against child welfare agents’ abuses of power is part of the same agenda.
Protesters, including many parents of color who plan to drive up from New York City, said they will be at the state Capitol this week demanding that the bill get a vote.
In a series of emails, an ACS spokesperson did not deny that ACS wanted to remove the word “rights” from the bill.
She did say that it would be “a major and important change to the law” to notify parents of their right to “not let us in” and that they can call an attorney.
The spokesperson added that the agency “has been supportive of legislation that would require child protective specialists to provide oral and written information to parents, about their rights, at the initial point of contact,” but that the measure should account for “the need for child welfare agencies to assess the safety of children who have been reported as possibly abused or neglected.
“ACS has been participating, in good faith, in discussions about pending legislation,” she said of the administration’s lobbying in Albany. “To be clear: ACS does not get a vote on the bill.”
It had appeared to family law professors and activists in New York that ACS was becoming more progressive under its new commissioner, Jess Dannhauser, who was appointed by Mayor Eric Adams last year. At public appearances and conferences, Dannhauser has expressed respect for low-income families of color and their rights.
“I’ve been struck by how Dannhauser is willing to say that these are rights — that the Constitution applies here,” said Anna Arons, a professor at the St. John’s University School of Law and an expert on search and seizure protections in the child welfare context. But, she said, there’s a “disconnect” between “what he’s willing to say and what position he’s willing to stake ACS to. It’s incredibly frustrating.”
The ACS spokesperson did not respond to a question about this characterization of the commissioner.
If ACS agents were to regularly read these rights and it caused some parents to refuse to let them in, then the agency could still go to court and get a warrant like police do, experts said. Or if a child is in danger, agents can already enter under existing law.
Brisport pointed out that the Texas Legislature recently passed a bill creating a similar family Miranda warning — and Texas is not a state known for its protections of poor nonwhite families.
No matter what happens, he said, the New York measure has gotten further than it ever has before.
Hevesi, the Assembly member, said in an interview that he also saw ACS’ proposed changes. The bottom line, he said, is that denying families knowledge of their rights while threatening family separation, in the name of investigating alleged child neglect, is “essentially fighting a childhood trauma with a childhood trauma.”