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BROOKLYN DEFENDER SERVICES STATEMENT COMMENDING THE RELEASE OF JUDITH CLARK

April 19, 2019

(Brooklyn, NY) – “Brooklyn Defender Services applauds the Parole Board’s decision to release Judith Clark after the Governor Andrew Cuomo commuted her sentence. This action reflects the ongoing efforts of advocacy groups across the state and country to reduce our prison populations by releasing people who demonstrate rehabilitation and no longer pose a threat to public safety.

The Parole Board Commissioners who voted to release Ms. Clark should be commended for following the laws and guidelines that require evaluation of who a person appearing before the Board is today, rather than solely who they were when they committed the underlying crime, in making their decision to release Ms. Clark. The Governor should also be commended for recognizing Ms. Clark’s ‘exceptional strides in self-development’ and rehabilitation.

Ms. Clark’s release is critical and overdue, but thousands of other people remain in prison with sentences that may likely exceed their natural lives. Absent meaningful legislative reforms or mass commutations, many will languish and die in prison. We are heartened by recent reforms to our criminal legal system and respectfully urge that enact the Elder Parole (S.2144/A.4319).

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BDS TESTIFIES BEFORE THE NYC COUNCIL COMMITTEES ON IMMIGRATION AND THE JUSTICE SYSTEM OVERSIGHT HEARING ON ICE OUT OF NEW YORK COURTS RESOLUTION 0828-2019 REGARDING PROTECT OUR COURTS ACT (A.2176 / S.425)

TESTIMONY OF:

 

Richard Bailey – Supervising Attorney, Immigration Practice

BROOKLYN DEFENDER SERVICES

 

Presented before

The New York City Council

Committees on Immigration and the Justice System

Oversight Hearing on ICE Out of New York Courts

Resolution 0828-2019 regarding Protect Our Courts Act (A.2176 / S.425)

 

April 10, 2019

 

My name is Richard Bailey. I am a Supervising Attorney in the Padilla Unit in the Immigration Practice at Brooklyn Defender Services (BDS). I thank the City Council Committees on Immigration and the Justice System, and in particular Chair Menchaca and Chair Lancman, for this opportunity to testify about the impact of Immigration and Customs Enforcement (ICE) in the New York City Courts.

 

BDS is one of the largest legal services providers in New York City, representing approximately 30,000 low-income Brooklyn residents each year who are arrested, facing child welfare allegations or challenging deportation. Since 2009, BDS has counseled, advised or represented more than 10,000 immigrant clients. About a quarter of BDS’ criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of deportation or other disproportionate collateral consequences as a result of their criminal case.

BDS’ Padilla Unit, named after the US Supreme Court case that held that effective assistance of counsel requires competent advice about the impact of a guilty plea on a defendant’s immigration status, advises BDS’ criminal defense attorneys and their noncitizen clients on the immigration consequences of guilty pleas to help avoid or minimize negative immigration consequences. Part of the consultation and analysis about immigration consequences in criminal proceedings involves evaluating a noncitizen defendant’s exposure to being arrested by ICE, detained, and placed in immigration proceedings. These consequences often result from being charged or simply arrested on particular offenses, and occur even if the charges remain pending.

ICE in Courts

Immigration and Customs Enforcement (ICE) and its predecessor, the Immigration and Naturalization Service (INS), has long relied upon state and local criminal legal systems to find noncitizens who may be removable in order to detain them and subject them to the civil deportation process. Historically, ICE and the legacy INS would identify undocumented or deportable people in jails and prisons and issue an “immigration detainer” to hold a person for up to 48 hours beyond their mandated release time so that ICE could assume custody of the person and transfer them to an immigration detention facility.

With the NY City Council’s passage of groundbreaking legislation that removed ICE from Rikers Island and prevented the NY Department of Corrections, NYPD, and Department of Probation from unlawfully detaining noncitizens without a judicial warrant, we saw a reduction in detention and deportations. However, under the Trump Administration, we are experiencing the harshest and most broad-sweeping immigration enforcement regime in modern history, as well as an unprecedented undermining of due process in immigration courts. On the national level, we are witnessing the highest rate of immigrants in detention in history at 48,000[1] and the highest immigration court backlog at over 1 million cases.[2]

Since we last testified about ICE arrests in courts, arrests in and around New York City courthouses have increased 1,700%, according to the Immigrant Defense Project report.[3]  The majority of people caught up in this wave of enforcement were reporting to court on low-level offenses, many for traffic violations. Since the beginning of 2019 alone, Brooklyn Defender Services has had more than 18 clients arrested by ICE in or outside the courthouse or in the community because of pending criminal allegations, mostly misdemeanors.

Since Trump took office, our immigrant clients have increasingly expressed concerns about the risks of coming to court. These clients include people with lawful status, those with citizenship claims, those seeking asylum, and naturalized citizens. They are often confused about the entanglement between ICE and the criminal legal system. They express fear of collusion between ICE and other officials, including court staff, judges, prosecutors, and even their own defense counsel. BDS’s in-house immigration attorneys, who specialize in advising our clients about the immigration consequences of criminal legal system contact, are routinely required to describe to our clients the very real possibility of ICE’s presence at court as well as the serious and definite risks of not appearing for their proceedings.

We are certain this fear, which is perpetuated by ICE’s deliberate arrest practices, has a grave and chilling effect on immigrant communities’ willingness to avail themselves of civil and criminal courts and the legal system generally. In practice, this means fewer innocent people or people with mitigating circumstances are mounting a defense against criminal allegations, potentially resulting in permanent criminal records and incarceration and/or triggering warrants; fewer cases bringing to light abuses and constitutional violations by police in immigrant communities; and fewer people exercising their legal rights in housing court to compel their landlords to repair unsafe conditions that endanger immigrants and non-immigrants alike. This chilling effect is starkly present in Family Court, where immigrant New Yorkers are afraid to show up to prosecute domestic violence, assert their parental rights or participate in visitation, custody or child support payment proceedings.

Client Stories

  • Stepping onto 120 Schermerhorn Street in front of Kings County Criminal Court should be a nonevent. For Beth, an asylum-seeker, when two large men put their hands on her without identifying who they were, it catapulted her back to memories of being viciously abused – grabbed,  attacked and subdued – her entire life. First by her father as a child, then her relatives when she came out as a lesbian, and most recently, by a relentlessly abusive ex-girlfriend. She never wants her 6-year-old son to feel the same sense of abandonment that haunts her, and was determined to be home when he got back from school that day. Literally grasping for her freedom, Beth clutched onto the waist of her immigration attorney who had accompanied her to court that day. In the midst of the physical scuffle, the men finally identified themselves as ICE, but only by taking out their badges and waving them around.
  • Last fall, another BDS client was arrested by ICE outside Kings County Criminal Court. The client appeared for his hearing and as he was exiting the courthouse two men approached him and said they were arresting him. The client asked if they were ICE, but they did not respond. The client felt like he was being kidnapped because they did not identify themselves or show a badge.
  • On another occasion, a Brooklyn Supreme Court justice excused our client’s appearance for the day, but instructed the attorney to personally serve the client with an order of protection. The attorney thereafter arranged to meet her client in a McDonald’s a few blocks from the court. Unbeknownst to her, undercover ICE agents had followed her out of the courthouse. After meeting with her client and serving him with the protection order, the attorney and the client departed from the McDonald’s and went their separate ways, at which point five ICE officers suddenly surrounded the client and arrested him. The client, who is married to a U.S. citizen, languished in immigration detention for more than four months before being scheduled for his first hearing in immigration court.

Recommendations

The surest way for local policymakers to protect immigrant New Yorkers from federal immigration enforcement is to set firm limits on federal intervention in the state criminal legal system. Ending so-called “Broken Windows” policing is urgent, now more than ever, as the Trump Administration uses local law enforcement actions and state-level convictions to aid in its mass deportation effort. ICE can identify and track our clients through arrest fingerprints shared by the NYPD with the National Crime Information Center database and court appearances.

Resolution 0828-2019 Regarding “Protect Our Courts Act” (A.2176 / S.425)

BDS strongly supports the “Protect Our Courts Act,” which would place significant restrictions on civil arrests of those attending or traveling to or from court. ICE’s courthouse arrests have undermined our clients’ fundamental right to have their fair day in court. New York State Legislators have the power to enhance the safety of our courthouses and take important steps towards ensuring that all New Yorkers, regardless of immigration status, can actively participate in their own cases without the specter of fear hanging over their heads. We ask the City Council to pass Resolution 0828-2019  calling on the State Legislature to pass, and the Governor to sign, the “Protect Our Courts Act” (A.2176 / S.425), in order to protect certain interested parties or people from civil arrest while going to, remaining at, or returning from court proceedings.

In addition to the proposed resolution, we call on the Council to consider the following campaigns that would limit immigrant New Yorkers’ contact with the criminal legal system:

 End Arrests of Human Trafficking Victims and Decriminalize Sex Work

As BDS and others have reported for many years, mere arrests, even in cases that are later dismissed or resolved with a non-criminal violation, can lead to deportations, family separation, and broken communities. Courthouse arrests are just one of many ways this occurs. Diversion courts like Human Trafficking Intervention Courts (HTICs) can help to reduce the likelihood of ICE enforcement actions by encouraging less punitive dispositions, but they can also serve as a trap, prolonging court involvement with mandated services. New Yorkers should not have to fear ICE arrest at a HTIC part, but policymakers should also ask why victims of human trafficking are arrested and prosecuted at all. The same question should be asked for those who voluntarily engage in sex work, many of whom are immigrants.

Criminalization is a dangerous and inappropriate tool purportedly aimed at helping people leave the sex trade. BDS is a member of the Decrim NY Coalition, which is working to decriminalize sex trade related offenses, decarcerate people who have been arrested for sex trade related offenses, vacate criminal records related to prostitution, and protect the health and safety of those involved in the commercial sex industry by circumstance, coercion, or choice, and those exploited in all forms of labor. We encourage the City Council to work with Decrim NY to hold an oversight hearing on Comprehensive Decriminalization of the Sex Trades.

Provide Equal Access to Drivers Licenses for All

Many of our clients become entangled in the criminal and immigration legal systems simply for minor traffic violations. Currently, over 750,000 undocumented immigrant New Yorkers over the age of 16 are barred from obtaining driver’s licenses due to their immigration status.[4] Without access to licenses, immigrants are unable to register and insure their vehicles or obtain and carry valid identification. Unlicensed immigrants often risk driving to meet their basic daily and travel to school, worship, and work. Immigrants without valid identification or permission to drive fear simple interactions with police, such as a traffic violation, will put them at risk of arrest and deportation. This leads to avoiding police, even when they are a victim or witness of a crime. We call on the New York City Council to work together with the New York State Legislature and the Governor to ensure equal access to driver’s licenses by passing legislation S.1747/A.3675 ​to ensure that standard licenses be accessible ​to all state residents, regardless of immigration status.Support Legalization and Regulation of Marijuana Access

Low-level marijuana possession offenses make up the fourth and fifth most common arrest charges in New York City. The sharp racial disparities in these arrests—approximately nine-in-ten of those arrested are Black and/or Latinx—are inexcusable and the disproportionate adverse impacts, especially for immigrants, are severe. When issued a DAT or summons in lieu of arrest, our immigrant clients are placed at risk when they present at court to pay a fine—an admission of guilt—without ever speaking to an attorney or receiving a Padilla advisal. As a preliminary step, the Council should sign-on as a supporter of the Drug Policy Alliance’s Start SMART NY campaign for state legislation enabling sensible and legal marijuana access through regulated trade that would help to economically empower those who are targeted under the current law. We thank the Council for your attention to this issue and for calling on the NYS Legislature to pass the Marihuana Regulation and Taxation Act (S.1527/A.1617) which would legalize, regulate, and tax the sale of marijuana in New York State.

Limit Family Separation through ending Automatic Orders of Protection

In Brooklyn Criminal Court, full Orders of Protection are typically issued at arraignments in all cases involving a domestic dispute, assault, or endangerment of a child. These routine Orders of Protection, in effect, render many clients homeless; they are unable to return home, go near, or speak to the named family member. For undocumented clients, without access to legal employment or identification, there are many barriers to accessing housing when unable to return home. This presumption of family separation is often triggered by well-meaning mandatory reporters making judgments about Black and Latinx families.

If then placed in immigration proceedings, clients who received full Orders of Protection face the bias of an immigration judge who are not be familiar with the routinized issuance of orders in Brooklyn.  Immigration judges look at our clients with an idealized expectation of how Americans treat one another; a DV or endangering the welfare of a child charge are interpreted as inability to adapt to American culture.  A judge may be unwilling to set Bond in a detained deportation proceeding due to an Order of Protection, which was likely set at the request of the DA and not a victim.

Conclusion

Our immigrant clients and their family members are rightly terrified to appear in court. But they cannot modify their immigration status if they have an open criminal case, and they cannot resolve their criminal or family case if they fail to appear in court. The impact of enforcement policies at the federal level are still felt every day by our immigrant clients, their families and New York City communities. New Yorkers must come together and make the necessary changes to build the sanctuary as promised.

Thank you for considering my comments. If you have any questions, please feel free to reach out to Kathleen McKenna, Policy Social Worker, at 718-254-0700 ext. 210 or kmckenna@bds.org.

[1]Patricia Alvarez, Budget talks sticking point: How many people ICE can detain, CNN, February 2019, available at https://www.cnn.com/2019/02/11/politics/ice-detention-immigration/index.html

[2] TRAC, Syracuse University, Immigration Court Backlog Surpasses One Million Cases, November 2019, available at https://trac.syr.edu/immigration/reports/536/

[3] Immigrant Defense Project, The Courthouse Trap: How ICE Operations Impacted New York’s Courts in 2018, January 2019, available at https://www.immigrantdefenseproject.org/wp-content/uploads/TheCourthouseTrap.pdf

[4] New York Immigration Coalition, Green Light NY: Driving Together, available at https://greenlightny.files.wordpress.com

BDS TESTIFIES BEFORE NYC COUNCIL COMMITTEE ON GENERAL WELFARE AND COMMITTEE ON HOSPITALS JOINT OVERSIGHT HEARING ON THE IMPACT OF MARIJUANA POLICIES ON CHILD WELFARE

TESTIMONY OF:

 

Nila Natarajan – Supervising Attorney, Family Defense Practice

BROOKLYN DEFENDER SERVICES

Presented before

The New York City Council Committee on General Welfare and Committee on Hospitals

Joint Oversight Hearing on the Impact of Marijuana Policies on Child Welfare

And

Intro 1161-2018, Intro 1426-2019, Res. 0740-2019, Res. 7426-2019.

April 10, 2019

 

My name is Nila Natarajan and I am a Supervising Attorney in the Family Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy in approximately 30,000 cases in Brooklyn every year. This has included thousands of people arrested for marijuana possession or sale, and people fighting deportation, eviction, or a loss of custody or parental rights due to marijuana-related allegations or convictions. We are grateful to the New York City Council for holding this hearing and taking an in-depth look at how the child welfare system treats marijuana use in New York City – including its deep-seated and stark racial inequities. We strongly support the two bills and two resolutions proposed by the City Council and appreciate this opportunity to comment on them.

BACKGROUND

BDS is the primary provider of legal representation to parents in child welfare cases in Brooklyn Family Court, one of the busiest family courts in the country. New York State law does not allow marijuana use to be the sole basis for removing a child from a parent; making a finding of neglect against a parent; or denying that parent visitation with their child. Yet my colleagues and I witness these and other extreme and prolonged consequences of parental marijuana use in family court every day – even when there is no evidence that a parent uses marijuana in the presence of their children or that the children are in any way harmed by the parent’s use.

Just last week, in a case we picked up on the first day the neglect petition was filed, ACS requested that, as a condition of allowing our client’s child to remain with her, she submit to a Credentialed Alcoholism and Substance Abuse Counselor (CASAC) evaluation and ongoing random drug screens. The petition filed against our client essentially only made allegations of homelessness. When questioned about the basis for the request for the evaluation and drug screening, ACS stated that our client admitted to using marijuana prior to becoming pregnant, seven months earlier. Although ACS had not raised marijuana use as a basis for neglect, ACS still threatened the removal of our client’s child if she refused to submit to random drug screens and asked the court to hold a hearing on that matter if she did not submit.

Given the widespread use of marijuana by people across race and income levels, it is not surprising that many low-income parents use marijuana to relieve stress, manage pain or nausea, or enjoy recreationally with friends. Unlike their wealthier, more privileged counterparts, however, our clients’ marijuana use routinely has life-altering consequences. At minimum, it may lead to an indicated case that remains on their record for up to 28 years, or to it may lead to even more serious consequences, such as the filing of allegations of neglect against them in family court, and may even create a barrier to the return of their children to their care if they have been removed for other reasons.

Sometimes, as with new mothers who test positive for marijuana at the hospital after giving birth, marijuana use is the initial allegation that triggers the filing of a neglect case. More often though, in Brooklyn, marijuana use is raised later in the course of a neglect case, when a parent is required to complete drug treatment for marijuana use as part of their “service plan,” which they must complete to get their children home or to close their ACS case. Marijuana use is too often the allegation or alleged safety concern that follows a parent for the longest time – the unfinished issue that delays reunification and drags out state surveillance for years. A parent’s ability to achieve total abstinence becomes more important than their commitment to their families and their ability to safely care for their children – due, we believe, to the stigma of marijuana use by Black and Latinx parents. Family Court and ACS often make little to no distinction between recreational or thoughtful use of marijuana by a parent, and the use of drugs that has a harmful impact on children, even though the law specifically prohibits the misuse, and not simply the use, of drugs and alcohol.[1]

The vast majority of the people we represent are people of color living in poverty, raising their children in homeless shelters or public housing, and in highly-policed neighborhoods, making them vulnerable to government surveillance. Similar to the ways in which the possession or use of marijuana may be used as a pretext to “stop-and-frisk” a person based on their race or the neighborhood they live in, suspected or actual marijuana use can be used as a pretext for child welfare involvement, government supervision of a family, and even the removal of children from their home.[2]

Even though it is now generally accepted that recreational or medical marijuana use can coexist with responsible, loving parenting, the people we represent, because of their poverty, race, and the surveillance over their lives, come under harsh and misplaced scrutiny. It is clear that the moral judgment imposed upon our clients surrounding their marijuana use is a direct reflection of class and race-based prejudice.

DRUG TESTING UPON THE BIRTH OF A CHILD

Racial disparities have been well-documented at many points in the health care delivery system, and we know that mothers of color and poor mothers are more likely to be drug-tested in child birth than white mothers, more likely to be reported to child welfare agencies, and more likely to be investigated by the state.[3] Positive drug tests often lead to further invasive investigation, the filing of a family court case, and possibly the removal of children. Our office continues to represent clients who face neglect allegations and the removal of their children due to their marijuana use during, before and even after pregnancy.

Many of the people we represent utilize public and private hospitals that predominately serve low-income patients for prenatal care, labor, and delivery. It is common for our clients and their newborns to be drug-tested at birth, often without their knowledge, without their informed consent, or even despite their explicit refusal. Our understanding is that the Health + Hospitals’ (H+H) policy requires verbal consent to drug testing during or after labor, but many people who have been tested at a hospital report that they were not asked permission for the hospital to test themselves or their babies. Drug testing without informed consent is often applied selectively, disproportionately impacting poor women and women of color using government-funded health care,[4] and is out of step with professional standards.[5] This is particularly disturbing because in our experience hospitals are not using confirmatory testing or the most reliable testing,[6] and there are no drug testing guidelines or requirements for hospitals, as there are in other contexts.

Given the dearth of scientific evidence proving that a person’s use of marijuana during pregnancy is harmful to a child,[7] particularly when that child has not also tested positive for marijuana, the choice to test a person for marijuana during labor is in and of itself unnecessarily invasive and may only lead to worse outcomes for the family. As far as we know, there is no standard of care that is different for a newborn who tests positive for marijuana, and a mother’s positive test for marijuana does not provide any useful information about a new parent’s current ability to care for a newborn.[8] On the contrary, the heightened scrutiny and separation of infants from their mothers after birth that occurs when a mother or child tests positive for marijuana at birth have clear negative consequences to neonatal development.[9] Evidence also shows that routinely testing pregnant mothers and newborns is bad public health policy. It may cause women to avoid seeking prenatal care or other treatment because of a fear that their newborns will be removed. As such, there is no clear medical or child protective justification for testing birthing parents for marijuana.

DRUG TESTING PARENTS AT THE INVESTIGATIVE STAGE WHEN THEY DO NOT HAVE ATTORNEYS

Parents who come into contact with the child welfare system are frequently asked to submit to drug tests during the investigative stage of a case when they have no right to counsel and no access to an attorney for legal advice. Case workers do not advise parents that they have no obligation to take a drug test without a court order. Parents often agree to these invasive tests because they are not told they have a right to refuse, and are fearful of negative consequences, including losing custody of their children. Instead, parents are regularly informed by ACS that if they refuse to submit to a drug test, a negative inference will be made that the test would have been positive. Even if a parent consents to a drug test and the results are negative, that parent’s time, resources, dignity, and right to privacy have been undermined. Parents who do test positive are frequently told by ACS that they need to complete a drug treatment program and abstain from using marijuana without an assessment of whether the parent’s marijuana use is negatively impacting the children. Thus, parents go into substance use disorder treatment programs unnecessarily when they are busy juggling jobs and caring for their children – and taking up spots that are may be sorely needed by people with true substance use disorders.

ACS’ TOTAL ABSTINENCE POLICY IS INAPPROPRIATE AND DISPROPORTIONATELY AFFECTS PEOPLE OF COLOR WHO ARE THE PRIMARY TARGET OF THE CHILD WELFARE SYSTEM

In our experience, ACS requests total abstinence from marijuana from the majority of parents regardless of whether that use is recreational or whether there exists any evidence that a parents’ use directly impacts their ability to safely care for their children. This is out of step with the requirements of the Family Court Act, which allows for a finding of neglect only where there is proof of misuse of drugs, and where that misuse is directly impacting their ability to provide adequate care or meet children’s basic needs [emphasis added].

In our experience, ACS’ treatment of marijuana use in child welfare-involved families demonstrates a conflation of use and misuse. Our clients who admit marijuana use or test positive for marijuana even once are usually referred by ACS to participate in rigorous drug treatment programs and/or continue to submit to random requests for drug testing indefinitely. These referrals have a coercive effect before a case has been filed, when the specter of a possible court case or child removal looms. We also see this effect after a case has been filed, when completion of treatment can be a prerequisite to expanded visitation, reunification, and/or ending state surveillance over a family.

Directing users of marijuana to drug treatment programs regardless of the degree and nature of use both misdirects scarce substance use treatment resources and the limited time and resources of our clients. Drug treatment programs have demanding and cumbersome schedules: Depending on the treatment center, parents may be expected to go to treatment several times per week, for several hours each day. Participating in these treatment programs limits our clients’ ability to seek and maintain employment, to pursue an education, and to spend needed time with their children.

Underserved communities of color have long been over-policed in the war on drugs. Similarly, in the child welfare system, marijuana prohibition and the insistence on total abstinence results in the systemic separation of poor families and families of color; this stands in stark contrast to the apparent absence of any legal action or drug treatment requirements imposed upon the white male author of an op-ed in The New York Times proclaiming the benefits of illegal marijuana use in parenting.[10]

We call on the City Council to increase the transparency and accountability of ACS and H+H in their investigation and reporting of marijuana-related cases; to be a leader in efforts to increase protections for patients by requiring informed, written consent for drug testing; and to call for a clear policy by ACS prohibiting adverse action against a parent for the mere possession or use of marijuana. Ultimately, we believe a culture shift to end the stigmatization and kneejerk condemnation of parents of color who use marijuana or other drugs is needed, and we hope that change could be engendered, in part, by a strong statement against disproportionately enforced and harmful prohibition policies as well as routine drug testing mothers at childbirth.

RECOMMENDATIONS

Res. 0740-2019 – Possession or Use of Marijuana Does Not Create an Imminent Risk of Harm Requiring Removal

BDS strongly supports this resolution. Current New York law does not allow the possession or use of marijuana to be the sole basis for the removal of the child from a parent, and ACS’ policy should reflect this basic legal principle. However, the resolution should also reflect that current law does not allow for the possession or use of marijuana to be the sole basis for a finding of neglect, either. As such, we urge the Council to align this resolution to the law and call upon ACS to draft and implement a policy that the mere possession or use of marijuana does not form the basis of a finding of neglect.

Similarly, we also urge the Council to call on ACS to implement a policy that the possession or use of marijuana alone cannot be the sole basis of an indicated case in the State Central Register or the sole basis to delay reunification of a family. Marijuana should be treated like alcohol – it should only be part of child protective investigation where it is clear that it is being misused to the point that the children are being harmed as a direct result.

A strong and clear statement from the Council and ACS will help us move towards a more equitable system that is better equipped to assist in keeping families safe and together.

Res. 0746 – Regulations for Hospitals on Drug Testing Those Who Are Pregnant or Giving Birth

BDS strongly supports this resolution. We further urge the Council to call on the State Legislature to pass- and the Governor to sign legislation requiring the Department of Health to amend the law to require that all hospitals, both public and private: obtain informed written consent before drug testing a patient; use only scientifically sound confirmed drug testing; offer regular, mandatory, comprehensive, and evidence-based training for staff on the effects of parental marijuana use on children; and ensure that patients giving birth and their newborns not be tested for marijuana because there is no medical or public health reason to justify such a test.

Further, rather than wait on the State Legislature, Governor, and the Department of Health to implement urgent and needed policy changes, we call on the Council to take action to require H+H to create and implement these changes now. It is our position that the current H+H policy requiring verbal consent for drug testing is not being implemented or documented in medical records, and is simply insufficient to ensure the privacy of patients or a full and accurate assessment of the risk of harm to a child.

Int. 1426-2019 – Reporting on Investigations Initiated by ACS Resulting from Drug Screenings at Facilities Operated by NYC Health and Hospitals

BDS supports this bill. However, because many of our clients and other low-income parents seek prenatal treatment and give birth at private hospitals, we urge the Council to require ACS to also report on investigations resulting from drug screenings performed at private hospitals. Without this information, this bill would only allow us to see a portion of the impact of hospital drug screenings. We also urge the Council to require reporting regarding the specific hospital that conducted the test, as well as the specific drug testing method used by the hospital, including whether there was any follow-up or confirmation drug testing completed.

Int. 1161-2018 – Enhanced Reporting on the Child Welfare System

BDS supports this bill and urges the Council to require reporting that disaggregates substance abuse allegations into the specific drug misuse alleged, and that race be a required reporting category as well as ethnicity.

Additional Recommendations

  • Given the frequent, coercive, and often baseless requests for parents to submit to drug testing during the initial investigation phase of a case, prior to the filing of a petition in court, and therefore, prior to the assignment of counsel for those who cannot afford legal representation, we urge the Council to call on ACS to implement a policy requiring ACS to inform every parent about their right to decline to take a drug test and to abandon their practice of taking negative inferences when parents decline a test. This aligns with parent advocates’ request for the Council to develop a Parent Bill of Rights, similar to Miranda warnings that are required during arrest.
  • With access to legal counsel before a court case is filed, parents with child welfare involvement would have the guidance needed to make informed decisions that would lead to better outcomes. New York City family defender offices have proposed a new and innovative initiative to fund pre-petition legal advocacy and social work assistance, which would reduce unnecessary court filings and family separations. We respectfully urge the City Council to fund this new initiative.

CLIENT STORIES

Included here, please find accounts of our client’s cases, representing just a small fraction of families whom we represent who are negatively impacted by ACS and H+H’s current policies around marijuana use.

When Ms. K went to the hospital to give birth to her daughter, hospital staff told Ms. K that all women giving birth are tested for drugs, so she should just tell them whether she would test positive for marijuana. Ms. K then admitted to using marijuana a couple of days prior. This admission spurred continued questioning and investigation of Ms. K. Ms. K’s newborn daughter was then removed and placed in non-kinship foster care, where she remains. Ms. K was asked to complete a substance abuse program and to test negative for marijuana. Ms. K was also required to abstain from drinking as well. Over the course of more than a year, Ms. K took part in a substance use treatment program, which she completed. Ms. K was also required to participate in individual therapy, complete a parenting skills program and an anger management program, and have supervised visitation with her daughter. Ms. K completed all requested services and remains in individual mental health treatment. ACS continued to seek a finding of neglect against Ms. K, and her child remains in foster care.

Ms. G’s children were removed from her care due to an unexplained injury to one of the children. After obtaining medical records, it was clear that Ms. G had a reasonable explanation consistent with the injury. At that point, the children had already been removed from Ms. G’s care for several months, and the only barrier to returning the children to her care was her marijuana use. Ms. G’s children were only returned to her care once she completed a drug treatment program and consistently tested negative for marijuana. Thus, her marijuana use prolonged reunification of the family by seven months.

Ms. A’s case began when ACS was contacted after she and her child tested positive for marijuana at her child’s birth. At first, ACS did not file a case against Ms. A, but insisted that she engage in drug treatment for her marijuana use. When Ms. A did not, ACS filed neglect charges against her. When Ms. A did not complete drug treatment after the filing, the Court granted ACS’ request to remove Ms. A’s three-month old from her care. Ms. A immediately entered an inpatient drug treatment program, where she had to consistently test negative for nearly two months before her children were returned to her care. Ms. A successfully completed the mother-child program and ACS agreed to the dismissal of her case.

When Ms. P gave birth to her child, she was very forthcoming with the hospital about having used marijuana occasionally in the past, including a few times during her pregnancy. The hospital then tested Ms. P and her child. Ms. P tested positive for marijuana and her child tested negative. Ms. P was a young mother, but prior to giving birth, she moved to New York to remove herself from a destructive environment, found employment, entered into a mother-child program and shelter, registered for parenting courses, and began GED courses. ACS filed a neglect case against her and due to her marijuana use, ACS sought to place her daughter in foster care. Ms. P’s child remains removed from her care in spite of her safe visits with her daughter, because she was not able to complete an inpatient mother-child drug treatment program and continues to use marijuana.

Ms. P and her child tested positive for marijuana at her child’s birth. ACS was called and for 16 months, Ms. P engaged in a drug treatment program at ACS’ request. When Ms. P continued to recreationally use marijuana, ACS filed allegations of neglect against her, alleging that she failed to voluntarily engage in a drug treatment program, and sought an order that the court granted excluding Ms. P from her home. Ms. P visits with her child nearly every day without any reported safety concerns, but cannot be alone with him, or return to her home, because she continues to use marijuana and has not entered a drug treatment program.

Ms. B’s older child was removed from her care, and placed in foster care, due to allegations of excessive corporal punishment. After completing an array of services, Ms. B’s contact with her child was limited to supervised visits, and her child’s placement in foster care continued for more than two years because she continued to test positive for marijuana. Ms. B’s younger child was then removed from her care at birth due to her and her child testing positive for marijuana. Ms. B had to consistently test negative for marijuana for five to six months before her children were returned to her care.

Ms. F tested positive for marijuana at her child’s birth which triggered ACS entering her life and filing allegations of neglect against her. ACS recommended that she engage in a parenting course, domestic violence counseling, a drug treatment program, and a mental health evaluation. Daunted by this litany of services, Ms. F decided to arrange for her mother to care for her child. ACS continued to pursue a finding of neglect against Ms. F, and though she visits with her child nearly every day without any reported safety concerns, and continues to plan for her child to remain with her mother, ACS continues to request that Ms. F complete a drug treatment program for marijuana.

Ms. G and her child tested positive for marijuana when her child was born. A report was called in by the hospital and ACS requested that she complete a drug treatment program, and that she continue to submit to drug tests for nearly two months before filing a neglect petition that included allegations regarding marijuana use. ACS only made one visit to Ms. G’s home in this two-month time. ACS continues to request that Ms. G complete a CASAC evaluation, random drug screens, a parenting course, a mental health evaluation, and preventive services. Ms. G uses marijuana to treat her pain from a herniated disc in her back; she believes this is a healthier option than prescription pain medications.

Ms. H was young and inexperienced, and not entirely prepared for motherhood when she gave birth to her first child. When her child was born, she was drug tested at the hospital without her knowledge or explicit consent and she tested positive for marijuana. After a hearing, the Brooklyn family court granted ACS’ request to remove Ms. H’s newborn from her care. Thankfully, the appellate court disagreed, and permitted Ms. H to keep her newborn in her care. The process of giving birth, immediately being brought to court, anticipating the worst possible outcomes through the course of an emergency hearing, and testifying on her own behalf was a harrowing experience for Ms. H. As a new mother, what she really needed to safely care for her child was meaningful support. ACS ultimately agreed to dismiss Ms. H’s neglect case just three months later.

Ms. P drank hemp tea during the course of her pregnancy. At the birth of her fourth child, her newborn tested positive for marijuana. ACS filed neglect allegations against Ms. P, raising previous ACS involvement from nearly 7 years prior, and alleging that her older children were derivatively neglected due to her marijuana use. The children were released to her care but the Court ordered that Ms. P allow ACS to make announced and unannounced visits to her home.

Ms. R was seventeen years old and in foster care herself when she gave birth to her son. Ms. R is open and honest about her ongoing marijuana use and takes steps to ensure that her child is in the care of others – including her group home staff or the child’s grandmother – when she uses marijuana. There has been no indication that her marijuana use has in any way affected her ability to safely care for her son. Still, ACS has sought to remove Ms. R’s son from her care three times in three months due, in part, to her marijuana use. Ms. R, exhausted by the constant ACS and Court surveillance, has consented to stop using marijuana.

Ms. B’s newborn tested positive for marijuana when he was born. ACS became involved, filed neglect allegations against Ms. B, and then asked that she submit to ongoing drug tests, test negative for marijuana, complete a drug treatment program, and engage in mental health treatment. Ms. B continued to dutifully care for her children without any reported safety concerns and cooperate with all recommended ACS mandates. However, ACS would not agree to a dismissal of the case until more than one year after the birth of the child. The ongoing court case and ACS supervision prevented Ms. B from being able to join her family in another state, where she would have had much needed support.

Ms. J’s ACS involvement began when she was alleged to have left her 15 year old home alone. ACS insists that Ms. J and both of her teenage children submit to drug tests. While there is no indication that Ms. J’s marijuana use currently interferes with her ability to safely care for her children, ACS requests that Ms. J engage in a drug treatment program and continues to request that her children submit to drug tests, over the objection of their attorney.

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We thank the City Council for your time and attention to these issues, and hope you consider BDS a resource as we continue to work toward fairness in the child welfare system.

If you have any question about this testimony, please contact Daniel Ball at dball@bds.org or (347) 592-2579.

[1] Family Court Act Section 1012 specifically defines a “neglected child” as “a child less than eighteen years of age whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care…by misusing a drug or drugs…” FCA §1012(f)(i)(B); Nassau County Dep’t of Social Servs. ex rel. Dante M. v. Denise J., 87 N.Y.2d 73 (1995) (per curiam)(The Court held that“[a] report which shows only a positive toxicology for a controlled substance generally does not in and of itself prove that a child has been physically, mentally or emotionally impaired, or is in imminent danger of being impaired.” The Court of Appeals stressed that “[r]elying solely on a positive toxicology result for a neglect determination fails to make the necessary causative connection to all the surrounding circumstances that may or may not produce impairment or imminent risk of impairment in the newborn child.”)

[2] Burrell, Michelle. “Child Welfare Needs to Have It’s ‘Stop-And-Frisk Moment.’ The New School Center for New York City Affairs. http://www.centernyc.org/child-welfare-needs-to-have-its. June 27, 2018.

[4] Open Society Foundations. “Expecting Better: Improving Health Care and Rights for Women Who Use Drugs.” https://www.opensocietyfoundations.org/sites/default/files/expecting-better-improving-health-and-rights-for-pregnant-women-who-use-drugs-20181016.pdf (2018), at 8, citing Amnesty International “Criminalizing Pregnancy: Policing Pregnant Women Who Are Using drugs in the USA.” https://www.amnesty.org/download/Documents/AMR5162032017ENGLISH.pdf (2017), at 40.

[5] The American Congress of Obstetricians and Gynecologists (ACOG). “Toolkit on State Legislation: Pregnant Women and Prescription Drug Abuse, Dependence and Addiction.”  https://www.acog.org/-/media/Departments/Government-Relations-and-Outreach/NASToolkit.pdf?dmc=1&ts=20190226T1940529955 (“ACOG policy states that urine drug tests should only be used with the patient’s consent and to confirm suspected or reported drug use, including for women who present at hospitals for labor and delivery.”)

[6] ACOG. “Even with consent, urine testing should not be relied upon as the sole or valid indication of drug use. Positive urine screens must be followed with a definitive drug assay…Routine urine drug testing is not highly sensitive for many prescription drugs and results in false positive and negative results that are misleading and potentially devastating for the patient, including accusations of child abuse and neglect.”

[7] Connor, et al. “Maternal marijuana use during pregnancy is not an independent risk factor for adverse neonatal outcomes after adjusting for confounding factors.” Obstet Gynecol. 2016 Oct;128(4):713-23. doi: 10.1097/AOG.0000000000001649. Available at https://www.ncbi.nlm.nih.gov/pubmed/27607879.

[8] ACOG. “Urine drug tests are not a substitute for verbal, interactive questioning and screening of patients about their drug and alcohol use…Testing does not provide valid or reliable information about harm or risk of harm to children.”

[9] Open Society Foundations, at 15.

[10] Mark Wolfe, Pot for Parents, N.Y. Times, Sept. 7, 2012 at http://www.nytimes.com/2012/09/08/opinion/how-pot-helps-parenting.html.

News

BDS STATEMENT ON CRIMINAL JUSTICE REFORMS INCLUDED IN THE ENACTED FY 2020 NYS BUDGET

Rally for Pre-Trial Justice Reform in the NYS Capitol

 

For Immediate Release…

Contact: Jared Chausow, jchausow@bds.org, 650.814.0565

BDS STATEMENT ON CRIMINAL JUSTICE REFORMS INCLUDED IN THE ENACTED FY 2020 NYS BUDGET

(New York, NY) – Lisa Schreibersdorf, Executive Director of Brooklyn Defender Services, released today the following statement on the Enacted FY 2020 New York State Budget:

“Brooklyn Defender Services applauds the New York State Assembly, Senate and Governor for the transformative criminal justice reforms included in the budget. As was expressed by the bill sponsors, Assemblymembers Joseph Lentol and Latrice Walker and Senators Jamaal Bailey and Michael Gianaris, during the momentous debates late last night, these reforms go a long way towards correcting the unfair system that currently exists, in which people languish in jail because they cannot afford bail, awaiting trial without access to police reports, witness statements, and other basic information needed to defend themselves. I also want to recognize the tremendous work of countless public defenders, advocates, and people impacted by the criminal justice system and their families.

With amendments to the bail, discovery, and speedy trial laws, most people who are arrested will be guaranteed release rather than incarceration and will have all the evidence and information related to their case. An important provision in these reforms requires police to provide appearance tickets as opposed to immediately incarcerating people charged with low-level offenses. Now, many more of our clients will never set foot in a jail cell, a vast departure from today’s reality. Given the devastating impact that even 24 hours in jail can have on a person, particularly a young person or someone with a health condition, this change exemplifies the profound improvements to justice in New York.

In addition to pre-trial justice reform, the budget includes crucial changes to misdemeanor sentences so they do not trigger automatic collateral consequences, ends the loss of driver’s licenses upon conviction of non-driving drug offenses, and adds protections against job and housing discrimination, all of which add an element of humanity to our criminal legal system that has long been lacking.

This is an auspicious moment that reflects the beginning of the end of mass incarceration in New York. Unfortunately, due to the hundreds of ways in which the criminal laws are overly harsh and used to target Black and Latinx people, there will be work to do in the future, such as legalization of marijuana; elimination of prolonged solitary confinement; repealing the bar on release of police misconduct records; ensuring fair and timely parole; expanding protections for young people who remain in the adult criminal justice system; and rolling back the thousands of consequences triggered by convictions like fair access to employment, education, housing and other necessities.

As we gear up to fight for these and other reforms, we must recognize the profound nature of this moment, in which we see a seismic shift in the way the criminal justice system will operate and what we expect it to accomplish. The attorneys, social workers, and other staff at BDS appreciate that these reforms will eliminate many of the obstacles that too often have prevented us from being able to secure fair and humane outcomes for the people we represent and their families. We thank the Legislature and the Governor for their leadership and very much look forward to ensuring these reforms reach their full potential impact.”

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Brooklyn Defender Services is a public defense organization that provides multi-disciplinary and client-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy for over 30,000 clients in Brooklyn every year. More info is available at bds.org.