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Attorney David Lansner explains how children and parents can sue the child welfare system
By Sarah Harris, Shakira Paige, Careena Farmer, Cynthia Zizola and Genesis Pagan, Rise Contributors, and Keyna Franklin, Rise Parent Leader
Many parents feel that what we experienced at the hands of child welfare was unjust but that there’s nothing we can do about it. We wanted to find out if that was true, so we interviewed David Lansner, a family court lawyer in New York City and one of the few lawyers in the country that brings lawsuits against the child welfare system on behalf of individual parents and children.
Lansner explained that the bar for suing is very high. But he also told us about some parents and children who sued and won. And he gave us a lesson in history and government in the process.
Here’s what he had to say.
Q: Can you describe your work and why you do it?
A: I’ve been an attorney since 1971. I represent parents in family court. I also represent children and parents in damage actions against the city. Why do I do it? Because I think children should be with their parents and families.
My parents were shocked to find out that that’s what I did because they said, “We didn’t think you liked being with us that much.”
But my reason for going to law school was to fight injustice. Law turned out to be something I’m very good at. It allows me to get into fights. The things I got in trouble for as a kid, now I get paid for.
Q: What are you looking for when you decide whether to take a case?
A: We had about six cases last year where we sued the city out of about 30 that were presented to us.
It’s different if it’s children suing or parents suing.
Even if a child needs to be in foster care, and removal was the right thing to do, the child can still for substantial mistreatment, such as sexual abuse or serious physical abuse.
Foster parents generally don’t have money, so you want to sue the foster care agency and the city. But there you have to show not only a negligent standard. You have to show that they were very negligent. Did they make their visits? Did they conduct proper investigations when they certified the foster parents? Did they check on any complaints that occurred?
Children may also be able to sue if they are taken for an examination at the hospital or Child Advocacy Center without parental permission, a court order, or a medical emergency.
If the parent sues, first of all, you need to have your kids back. We don’t bring cases for people who don’t have their kids back. We’ll help you get them back. We’ll represent you in family court. But we won’t bring a damage action if you don’t have your kids.
If you don’t get your kids back, it doesn’t matter that they violated your procedural rights. You’re not going to win. And the city will try to never return your kids.
You also have to win your case. If you don’t get the findings reversed, you can’t sue for malicious prosecution.
If there’s a neglect finding, you might still have a legitimate legal case that your children shouldn’t have been removed, because not every finding of neglect shows need for imminent removal. But if you go into court with a jury of people who don’t know anything about the system and try to explain to them the difference between neglect and imminent danger, it’s really hard, and we probably wouldn’t take that case.
If you win your case, next you have to show that ACS should not have removed your children, and that they suffered trauma being removed and being in foster care. A good case to bring is if ACS went to a judge twice for a removal and the judge said no both times, and they did the removal anyway, and then the children were returned by the judge, and the children suffered while they were in care.
We also want clients who are going to make a good impression in court. When I’m deciding that, I am not making a personal judgment. I’m making a prediction about what I think a jury would respond to.
Most of all we want to make sure you really care about the case and that you will show up when needed.
These are hard cases. We’re suing people who claim that they’re doing God’s work. We can expect a case to last at least two years. One case we started in 2005 is still going on. We’re going to put in $100,000, $200,000, $500,000 worth of legal work into it. So we want to win.
Q: Can you tell us about some of the cases that you have brought and won?
A: We had a case where ACS got a report about a 5-year-old girl who was non-verbal. She didn’t talk. She was in school and the teacher decided to use dolls to see if the girl had been sexually abused, which is very complicated to do even if you’re experienced at it, and this teacher wasn’t.
She reported that the girl was sexually abused by her father. Caseworkers went out and saw the home, they interviewed everybody. The supervisor said that the girl needed to be examined, but they didn’t get a court order to do it. The supervisor just told the caseworker, “Don’t tell her parents. Tomorrow, just go to school and take her to the hospital for a sexual abuse exam.”
Ultimately there was no finding of sexual abuse against the father, and the court held that taking the girl to the exam was a “seizure,” which is illegal, and that there was plenty of time for ACS to go to court to get a court order.
We had another case where ACS went out to investigate a report of abuse. They went to school and they asked for Natalie somebody, and the school brought down a girl named Natalie. She had a different address than what was on the report. She had different siblings.
But instead of saying, “This is not the right kid, this is the wrong Natalie,” they removed her, then they went to the school of her siblings and removed them and took them all to the hospital. When the mother came and said, “What are you doing? I’m not the person in this report,” the caseworker ignored her. The city settled very quickly.
One of the biggest suits we brought was called Nicholson v. Scoppetta. ACS was removing children because they said mothers who were abused were “engaging in” domestic violence. That’s like saying that if you’re mugged on the street you engaged in robbery. The mothers weren’t voluntarily doing it, so we filed a class action suit in federal court, and a judge ruled that you cannot take away children solely because a parent is the victim of domestic violence.
Q: On what grounds can you sue the child welfare system?
A: What the courts have said is that child custody is a “liberty interest,” which is covered under the 14th amendment. The 14th amendment says no person will be deprived of life, liberty or property without due process of law. And that’s very good because a liberty interest is a very important right. Property is also a right and you get due process but you don’t always have to get as much due process, because the court says the harm to you is much greater when you’re deprived of liberty.
That applies not just to parents’ interests in being with their children but to children’s interests in being with their parents.
Children actually have two areas where they’re protected. The 4th amendment says you have a right to your home, and not to have unreasonable searches and seizures without a warrant. Children have a right to not just be seized by the government and put somewhere, even if they’re put into grandma’s house. It’s still a seizure, and it has to be done properly with a warrant or court order.
So children are protected by the 14th amendment and the 4th amendment. For parents it’s only the 14th amendment.
One big loophole to the protections under the 4th and the 14th amendment is that the courts have said there’s an exception for emergencies. As you know, ACS frequently doesn’t get a court order, since they have permission for emergency removals and then they go to court afterward. But there’s no set definition of what constitutes an emergency, and the courts may have a different version of what constitutes an emergency than ACS does.
ACS’s version is often, “Well, we didn’t have time to go to court because the caseworker had to leave.” That’s not my view of an emergency.
The publication Child Welfare Watch recently had statistics that 1,874 children were removed by ACS in 2018 without a court order. But of those, 514 were returned by the judge at the first court appearance. All of those children and all of those parents may have grounds for a lawsuit, because a neutral person found that the children didn’t need to be removed. ACS would say that the family’s situation changed, but it didn’t change that much in one or two days.
Even if ACS gets a court order, they may still be liable, because due process has two parts.
There is “procedural” due process. That means that you have to go to court first and get a court order.
And then there’s “substantive” due process. If they lied in one of the papers they presented to the judge or if they omitted something significant, or they brought a case against you and they knew it wasn’t a valid case, they can be sued for malicious prosecution.
But to win a malicious prosecution case, it has to be a “material lie.” You have to show that the lie would have affected the judge’s decision whether to remove the kids.
Q: In what kind of court can you sue the city?
A: A child welfare suit against a city, or county, or a foster care agency, can be brought in two different courts. First, there is New York State Supreme Court, which is the general trial court in New York, and not the highest court, and which has a branch in every county. Or you can sue in the United States District Court (federal court).
We generally sue in the federal courts, for several reasons: the cases move faster, the agencies are less able to hide their records, and federal courts are used to awarding attorney fees to successful parties, which means that the defendants have to pay fees on top of the damages.
Federal court is concerned with issues that arise under the Constitution of the United States or the laws of the United States.
After the Civil War, the United States adopted three amendments, one was to abolish slavery, one was the freedom to vote, and one said people have the right to equal treatment.
That was something that especially some of the southern states were not providing to their citizens, especially freed slaves. So eventually Congress enacted a law called the Civil Rights Act, and what it says is that when anyone acting “under the color of state law”, such as government agencies, deprives someone of his or her civil rights, that person can sue in federal court, because back then, if you’d tried to sue in Alabama courts, it wouldn’t have gotten you anywhere.
Q: How much will it cost a family, how much might a family win, and how successful are you?
A: We don’t charge for our services in advance. We do it on a contingency basis. If we win, we get a share of the winnings, and if we lose, we don’t get anything. We do have expenses, and we do ask all of our clients to make monthly payments toward those expenses, but it depends on what their resources are.
If an ACS case worker harms you, you may be able to sue that caseworker. But caseworkers don’t have a lot of money usually. So you want to sue the city that employs her because the city has a lot of money.
But the Supreme Court says that in civil rights actions, you can only sue the system if you can show that the wrong done to you was done by higher ups or was part of a practice or policy of the organization. So when we sue, we try to show that the city is responsible because the caseworker was acting according to city policies or practices.
Very few suits go to trial. Sometimes they’re dismissed before trial but most cases settle. We have won between $5,000 and $700,000 for a family. We consider a settlement a win.
Lansner & Kubitschek represented LaQuana Chappelle and her three children for illegal removal of the children and malicious prosecution of their mother. The case was settled, with the City of New York paying damages to the four of them.
Read our interview with LaQuana Chapelle about her experience suing the system.
How to write up your case if you think you may have a lawsuit against ACS
If you think you may have a lawsuit against New York City’s Administration for Children’s Services, you can write up your case and send it to David Lansner at DLansner@lanskub.com.
Your write-up should be about one-page long. It should include:
- The Basics About You: How old you are; your education and means of support; whether you’re married; how many children you have and their ages.
- The Basics of the Case: The allegations, whether the children were removed; whether they were removed before a hearing or after; how long they were removed for; whether you were prosecuted; and the results of the case.
- What You Think Was Illegal: That could be that they removed the children without an order; that they lied on the petition; that they lied in court, etc.
- Contact Information: Your phone number and email address.