Excerpts from article by Careena Farmer, Melissa Landrau and Sara Werner, Rise Parent Contributors, and Keyna Franklin, Rise Parent Leader below. Full article here.
Parents can be charged with so-called “derivative neglect” of a newborn if a previous child entered foster care. Here, Emma Ketteringham, managing director of The Bronx Defenders’ Family Defense Project, explains how pregnant parents can get support and protect their rights.
Q. How can a parent defend their newborn from a removal if the parent was previously charged with neglecting an older child?
A. The law says that if you were found to have neglected a child, and then you have another baby, even if you don’t do anything new to neglect the baby, the baby can be considered “derivatively neglected” by ACS because there was a condition that led to the neglect of an older child. ACS is saying that the conditions haven’t changed or improved, so any child you have after that is also neglected.
The way to defend against it is say, “No you’re wrong. The condition or circumstance that led to the abuse or neglect of my older child does not exist anymore and my younger child is not at risk of neglect.” It is a fact-based defense. You have to show that whatever condition existed when you had your older child’s case, no longer exists.
When there are underlying issues like substance use or mental health issues or domestic violence, ACS might say, “Has it really changed? Have you had “insight”?” “Insight” is a word that ACS uses a lot in these cases. They might question whether you truly understand the underlying issue and how it poses risk. If you show that you do understand that, they are more likely to find that your insight into the situation will help reduce whatever risk might exist.
The argument that ACS would put forward is, “We have to make sure all children are safe. We don’t want this baby going home. Even though something brand new hasn’t happened, if the older condition or circumstance or danger or risk still exists, we need to keep this baby safe.”
The problem is that, in reality, it just keeps families in the system much longer than they need to be. It makes you feel like the crime is just giving birth. It also makes you submit to their power or admit to risk, even if you know you did nothing wrong and do not pose a risk to your new baby. In this way, it becomes a reproductive justice issue because the approach by ACS unfairly interferes with a person’s choice and decision to give birth. Parents might decide they don’t want to risk ACS involvement or losing a new baby to the system. A lot of times we talk about this legal defense work as work for reproductive justice, because we are working to prevent the state from unfairly, unjustifiably interfering in a woman’s fundamental right to decide whether to give birth or not.
These were excerpts from article by Careena Farmer, Melissa Landrau and Sara Werner, Rise Parent Contributors, and Keyna Franklin, Rise Parent Leader below. Full article can be found here.
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