Abuse of the Emergency Removal Power
State law gives ACS workers the power to remove children from their homes entirely on their own authority. That enormous, unchecked power is supposed to be used only when the worker considers the case an emergency and doesn’t have time to get a court order. But in response to a federal lawsuit, ACS admitted that its workers use this power routinely, whether there really is an emergency or not. The impact on children can be seen in the harm done to the child at the center of the lawsuit.
Sarah Tenenbaum was five years old, and developmentally delayed when her trauma began.
After a barrage of leading questions from a Kindergarten teacher, Sarah made comments that the school interpreted as alleging sexual abuse by her father.
Two child protective workers made an unannounced visit to the home on a Friday, stripsearched Sarah and her brother, questioned them both, found nothing wrong and left. They also lied about why they were there, never mentioning any allegation of sexual abuse. Though they claim they told Sarah’s father to call their office on the following Monday, the parents say they received no such instruction – they didn’t even get a phone number. All weekend, the city took no action on what it later would claim was an “emergency.” Then on Monday, child protective workers visited the school. Still, no action was taken.
Then suddenly on Tuesday morning, four days after the investigation began, the case allegedly turned into an “emergency” – solely because Sarah’s father didn’t make a phone call he says he never was told to make. And even if he had been told to call, the father had no way to know such a call was urgent since he was never told the real reason for the investigation. With neither permission from the a parents nor an order from the court, child protective workers converged on Sarah’s school. Suddenly the five-year-old was torn away from teachers, classmates, and friends. She was forced into a car with a stranger and driven to a huge hospital.
There she waited for hours, amid strangers, for a medical examination. Finally two doctors she had never met before, a pediatrician and a gynecologist, conducted an examination that included the insertion of a cotton swab into Sarah’s vagina and anus. Through it all – the seizure, the waiting, and the examination, Sarah had no mother, no father, no one she knew at all to comfort her. No evidence of abuse was found, Sarah was returned to her parents that night, and the case ultimately was ruled unfounded.
Citing the lower court, the U.S. Court of Appeals for the Second Circuit ruled that “Sarah, almost certainly, did, in fact, experience psychological injury” at the hands of the City.
ACS admitted that the way it treated Sarah was nothing unusual. ACS admitted it is standard operating procedure to bypass the courts when taking away children, even when there is plenty of time to get a court order. As the Appeals Court noted in its decision: “at oral argument on this appeal, counsel for [ACS], when asked whether the City condoned the defendants’ actions, responded ‘Yes, and they do it routinely. That is the policy.’”
The court decision was scathing in its denunciation of ACS’ approach. “If, irrespective of whether there is time to obtain a court order, all interventions are effected on an ‘emergency’ basis without judicial process … due process for the parents and their child evaporates,” the court ruled. “If officers of the State come to believe that they can never be questioned in a court of law for the manner in which they remove a child … it is inevitable that they will eventually inflict harm on the parents, the State and the child” [emphasis in original].” [i]
ACS’ first reaction was to defy the court. The agency put out a memo telling workers to change nothing. Then it reconsidered in 2003, modifying the memo. There has been some improvement, but ACS still abuses the emergency removal power regularly. [ii]
[i] Tenenbaum v. Williams 193 F. 3d 581 (2d Cir., 1999)
[ii] Personal communication, Carolyn Kubitschek, counsel for plaintiffs, Tenenbaum v. Williams .
