Family Defense Advocates Urge Albany to Reform Family Regulation System

(NEW YORK, NY) – Impacted parents and advocates from across New York State today called on lawmakers in Albany to pass three critical bills that they say will help counter the racial-based surveillance inherent in the family regulation system, and empower Black and brown families.

They voiced their demands during a press conference (passcode: %7E5nJ&7) in which the impacted parents, healthcare providers, birth workers, legal advocates, and activists were joined by the co-sponsors of the legislation leading the fight in Albany to transform the family regulation system. These advocates include parents impacted by the family regulation system, individuals from JMacforFamilies, Movement for Family Power, the Parent Legislative Action Network, The Bronx Defenders, New York Drug Policy Alliance, the Harm Reduction Coalition, birth workers, legal scholars, and health care providers.

The advocates are calling for the passage of three bills before the end of the 2021 legislative session:

S4821 / A4285, to prohibit non-consensual drug and alcohol testing and screening of pregnant and prenatal people and newborns.
S5572 (2020 bill number, 2021 number pending) which would require all callers to provide identifying information when reporting allegations of child maltreatment.
S5484-A / A6792, requiring caseworkers investigating child maltreatment to notify parents and caretakers of their rights.

These bills are a part of a larger effort in New York to shrink the pathways through which families are funneled into the family regulation system, which has historically been and continues to be used to surveill and target Black and brown families. In New York, Black children make up only 15% of the children in the state but 40% of the children in the family regulation system, whereas white children make up 48% of the children across the state but only 25% of the children in the family regulation system.

“It is time for Albany to reckon with the system that purports to keep children safe, but actually does great harm to Black, brown and marginalized families,” said Emma Ketteringham, Managing Director of the Family Defense Practice at The Bronx Defenders. “The family regulation system needlessly separates children from their parents and subjects families to traumatic surveillance. As public defenders representing low-income parents in the Bronx, we’ve seen first-hand how families are entangled in the family regulation system by anonymous, unaccountable tips, referrals by well intentioned people who don’t understand how the system actually works, or a ‘test and report’ system that subjects pregnant people, new parents and their newborns to non-consensual drug testing. And we see the devastating consequences when our clients are not informed about their rights during investigations by family regulation system agencies. It’s time for New York to stop policing families and start supporting them instead.”

“Black and Brown people have the right to healthy, happy, and safe families that remain together. Our familial bonds are sacred and worth fighting for. The practice of “test and report,” along with family regulation system involvement, creates cycles of foster system involvement and intergenerational trauma in our communities and spans generations. Hospitals claim to want to serve families and children, but the practice of testing without informed consent and reporting is, in actuality, causing incredible harm and trauma. Reimagining support for pregnant and parenting people should be led and defined by those closest to the issue: pregnant and parenting people. Our families need support, not surveillance and separation.Our communities need better social support systems – such as food, housing, a living wage – to thrive.” said Ericka Brewington, an activist in New York City and mother of four children.

“Since its creation, the family regulation system has been a system that devalues Black, Indigenous, and Brown familial bonds. It reproduces and perpetuates racism, classism, ableism, and patriarchy. Recognizing that there is no reforming the family regulation system, we must shift power and autonomy back to the communities that have so long been under the system’s destructive grip, narrow the pathways through which families are thrust into the system, and ultimately dismantle it. If New York is truly a place where all families are entitled to dignity and respect, the New York Legislature must pass and Governor Cuomo must sign these bills, which are steps toward disrupting the various ways that the family regulation system ensnares, polices, and punishes families,” says Halimah Washington, parent activist and advocate, and RISE Magazine Community Coordinator.

“One day we will stop making excuses for these antiquated racist laws and policies that harm and separate BLACK families. For this reason I am in support of the Informed Consent, Family Miranda Rights, and Confidential Reporting bills,” says Joyce McMillan, executive director of JMacforFamilies, activist, advocate, organizer, and thought leader.

“The Miranda Family Rights, confidential reporting, and informed consent bills are so important because they protect basic human rights and reduce the number of families who end up in the family regulation system,” said Nancy Fortunato, an advocate for change. “These rights should not be ignored or trampled. Knowing our rights is a tool to build us up and empowers us to do what is best for our families. This is so important in my community, where the systemic racism and oppression of the family regulation system continues to cause harm.”

“For decades, pregnant people with substance use disorders and their newborn children have been subject to invasive drug and alcohol screenings without their consent or knowledge. The results of these tests have been forwarded to family regulation systems, and instead of offering treatment and support, they have been used to subject families to painful and punitive consequences. This “test and report” procedure has eroded the trust that is supposed to exist between a patient and their medical provider. In particular, for too many people battling a substance use disorder, it has created a disincentive to seeking medical care. This session we must pass bill A.4285, my legislation that requires a patient’s informed consent before a drug or alcohol screening can be conducted,” said Assemblymember Linda B. Rosenthal (D/WF – Manhattan), Chair of the Assembly Committee on Social Services.

“These bills are important interventions in a family regulation system that destroys families with distressing regularity. Vulnerable families need support—not surveillance and punishment. These bills work to limit the reach of a punitive system that does little to empower the people and families it should be protecting,” said Dr. Khiara M. Bridges, Professor of Law at UC Berkeley School of Law.

“All families deserve the right to be treated with dignity. However, to treat families involved with the family regulation system with dignity, that system must first believe that all members of the family, parents included, are worthy of honor and respect,” said Tricia Stevens, Assistant Professor & CUNY Mellon-Inaugural Fellow.” “The first-hand accounts of the lived experiences of parents who engage with this system have shown time and again that it does not. The centuries old-American appetite for family separation has long exploited families who are viewed as having little power – Black families, poor families, immigrant families and now Latinx families. The family regulation system as it currently operates cannot claim to leave these families universally better off than when they first found them. These reforms acknowledge the inherent right that family regulation system affected parents have to the information that will dramatically affect their families in the immediate term and indeed for generations. The question is not should they have these rights, but why have we withheld them from these particular families for all this time.”

“Black and Brown parents have the right to informed consent, autonomy, and respect. They deserve dignity and support. Unfortunately, the United States has a history of subordinating Black and Brown bodies, and it is still happening today in the family regulation and criminal legal systems. The family regulation system is part of the carceral state that separates families. Drug testing without informed consent violates the rights of Black and Brown parents, fuels maternal incarceration and cycle of incarceration, and is an injustice. Families need support, not surveillance and separation. We must dismantle and divest from systems that cause families harm and that do not offer healing,” said Movement For Family Power.

“Family separation is often done under the guise of the state saving the infant, but also with the aim of punishing or at least showing indifference to the family. This holds true for people who are pregnant and use or have used drugs,” said Kimá Joy Taylor, MD, MPH, FAAP. “Health care providers are a part of the community that can help support positive social, emotional and physical health outcomes for families. For that to happen, trust between care providers and patients is essential,The practice of drug testing pregnant and new parents without consent and reporting to CPS destroys trust between the patient and provider, potentially turning what should be a confidential, trusting relationship where provider and family work in partnership to optimize health, into an adversarial one. Informed consent for drug testing is a crucial first step to ensuring confidential and high quality care, and fostering a trusting relationship between patient and provider.”

“The United States has a long history of devaluing, terrorizing, and destroying Black, Native, and Latinx families,” said Dorothy Roberts, Professor at University of Pennsylvania. “Every day the so-called ‘child welfare’ system deprives parents of their autonomy, ensnares families in intrusive surveillance, and needlessly subjects children to traumatic family separation. These bills are essential steps toward protecting the rights of parents and communities as we work to end family policing and imagine a better way to care for children.”

“The expansive and unchecked power of the family regulation system has led to generations of Black and brown families being subject to disproportionate surveillance, control, and punishment. Every day in my work, I see Black and brown families continuously face the fear and uncertainty that comes with birthing in New York City–from being surreptitiously drug tested by healthcare providers at birth and reported to the family regulation system, to family regulation system workers knocking at a new parent’s door and withholding critical information about that parent’s rights. It’s past time for New York to demand transparency and institutional accountability for the families who have been harmed by these practices, and these bills are critical pieces of a larger movement to end the policing and punishment of families,” said Chanel Porchia Albert CD, CPD, CLC, CHHC, Founder and CEO of Ancient Song Doula Services and Commissioner on NYC Commission for Gender Equity.

“Most of the problems we link with drug use are not caused by use. Disease, crime, and violence are not actually related to substances themselves, but to structural racism and the criminalization of people who use drugs,” says Nathalia Gibbs of National Harm Reduction Coalition. “Black and Brown birthing people are already subjected to racism that shortens their lifespans and increases the risk of death during labor. Lack of informed consent is just another way providers strip autonomy away from parents. It sets up an adversarial relationship with providers, where instead of working together to support parents who use substances, the parents are questioned, shamed and punished. Parents are pushed into a cascade of CPS involvement, with fear now governing every decision. There are no avenues for support and they are often set up to fail. Supporting informed consent is the first step in preserving parents’ autonomy, allowing us to direct our attention to the root causes of what actually causes harm — structural racism and the systems that profit from it.”

“As public defenders who have represented thousands of low-income parents in Brooklyn, we witness first-hand the ways in which family regulation system investigations can harm families. Parents often endure invasive home visits, interrogation into sensitive topics, and even the unnecessary and traumatic separation of their families, all before having the assistance of counsel. These three bills seek to address the over-reporting to family regulation system authorities, which is often used against low-income families and families of color. Like criminal investigations, important liberty interests are at risk during any family regulation system investigation. For this reason, New York must insure those being investigated are aware of their rights and are protected against unnecessary reports that disrupt families and compromise access to important community-based services and support,” said Nila Natarajan, Supervising Attorney & Policy Counsel, Brooklyn Defender Services.

“There has been a great deal of discussion over the last year about taking on structural racism. Those conversations have been important,” said Chris Gottlieb, co-director of the NYU Family Defense Clinic, “but now it is time to translate our renewed commitment to racial justice into action. Current statutes don’t explicitly reference race in ways laws sometimes used to, but there is no doubt that they continue to impose harm on certain families and communities far more than others. This package of bills begins the critical work of addressing the hidden mechanisms of racial harm in our family regulation system.”

“Routine drug testing at the time of delivery is performed primarily for the purpose of surveillance not clinical care. Drug tests are not the proper assessment of addiction, not an evaluation of harm to the newborn, and not a parenting test,” said Mishka Terplan MD, MPH, a physician boarded in both OBGYN and Addiction Medicine. “These common misuses of drug tests disregard the medical standards of laboratory testing, violate patient autonomy (when conducted without explicit informed consent), and compound racial inequities. As we continue to reckon with the maternal-fetal mortality crisis in the United States, a crisis that is borne most heavily by Black mothers, it is imperative that we take immediate steps to root out such harmful practices. The informed consent bill is a part of this work–it resets the parameters of drug testing in pregnancy and postpartum on both clinical and person-centered care, in short, how medicine should be practiced”

“The Center for Family Representation stands firmly in support of S4821 / A4285, S5484-A / A6792, S5572. These bills are an important step in holding systems that purport to help families accountable while ensuring that all parents have equal access to justice. Parents deserve to know their rights and make informed decisions when they are under investigation for child maltreatment. Families should not have to experience invasive and traumatic investigations based on malicious or false reports made anonymously. No person or their child should be drug tested without their consent. It is not only fair to inform parents of their rights and require medical providers to obtain informed consent, it is imperative for preventing further destruction to communities of color, who are disproportionately impacted at every stage of child welfare involvement,” said Michele Cortese, Executive Director, The Center for Family Representation.

“As an OB/GYN physician, I always want birthing people and their babies to have the best outcomes possible. Keeping mothers and their children together is a big part of supporting a family’s health. Unfortunately, as a result of unnecessary drug testing and reporting, newborns can be unjustly and traumatically separated from their mothers. The law doesn’t require drug testing of pregnant people, and substance use alone during pregnancy is not legally considered to be abuse or neglect,” said Emily Carrillo, OBGYN, FACOG in Rochester, NY. “Hospitals and clinics do not have to conduct blanket drug testing of their pregnant patients. I support the Informed Consent Bill because it will help families stay together, reduce the number of children that go into the foster system, and because it is a way to support rather than criminalize parents who use drugs.”

“All Families deserve dignity, respect, and support,” said Lorie Goshin, Associate Professor of Nursing at Hunter College. “Policies that criminalize and surveil create barriers to health and family preservation. They are rooted in racism, patriarchy, classicism, and ableism. Making parents aware of their rights in CPS interactions, demanding that health care providers obtain informed consent prior to drug testing parents and their newborns, and prohibiting anonymous reporting are important shifts towards upholding the rights of parents and protecting the wellbeing of New York families. ”

“As a social work researcher, the evidence is clear–the harms of the punitive and racist child welfare system are detrimental to the health and wellbeing of pregnant people and parents. These bills are critical to ending the existing counterproductive system and begin the process of creating a world where individuals, families, and communities are safe, supported, and loved.” said Bethany Medley, MSW and Ph.D. Student at Columbia University School of Social Work.

“Black and brown parents live in fear of the government using its vast resources and unchecked power to separate them from their children, not just at the border, but here in our own communities. Families need support, not surveillance and separation,” said Zainab Akbar, Managing Attorney of the Family Defense Practice of Neighborhood Defender Service of Harlem. “This very important set of bills helps protect existing rights, ensures equity and protects families from false and malicious reports. For years, it’s been called the ‘child welfare system,’ but those of us who have seen its devastating impacts call it by its actual function – the family destruction system. Albany should pass and enact the bills to put some power back in the hands of the Black and brown families that the family destruction system targets.”

“This country is in the midst of a reckoning over how our systems of policing perpetuate a long history of brutal racism. We must work together to end unnecessary and traumatizing family separation at the hands of social services agencies charged with the regulation of families. The tools used by government agencies in the name of protecting children too often operate as a means of surveilling parents and regulating family life, separating parents from their children and disproportionately harming Black and Brown families. We call upon our policy makers to pass legislation that ensures parents know their rights when the state seeks to intervene in family life and puts an end to non-consensual drug testing of pregnant people and new parents.” said Zachary Ahmad, Policy Counsel with the New York City Civil Liberties Union.

“Parents deserve to feel safe and supported when they access our hospitals. When health institutions like hospitals prioritize acting as enforcement actors by conducting capricious and racially biased drug testing, that erodes public health and makes it harder to ensure we can give soon-to-be-parents the support they need and can result in disastrous outcomes and policies that negatively target Latinx and Black pregnant people must end. New York deserves a healthcare system that provides support and centers individual and family well-being, not one that punishes and surveils in line with the war on drugs,” said Melissa Moore, New York State Director, Drug Policy Alliance.

“Our current family regulation system disproportionately impacts black and brown families and too often mistakes poverty for abuse or neglect. These bills are our first steps as the legislature begins a comprehensive analysis of the system. I look forward to working with PLAN, CFR, the Bronx Defenders, impacted parents and everyone attending today on these and future policy changes,” said Assemblyman Andrew Hevesi, Chair of the Children and Families Committee.