By Careena Farmer, Melissa Landrau and Sara Werner, Rise Parent Contributors, and Keyna Franklin, Rise Parent Leader

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.

Q. How can you get help if you are pregnant and are afraid your baby will be removed?

A. We have a program at Bronx Defenders called Healthy Mothers, Healthy Babies. We created this program because we noticed that, sometimes when our clients with child welfare involvement became pregnant, they disappeared. They might be visiting, planning, seeing us in court, and then suddenly they were gone, and when they would come back, they were very pregnant. We’d ask what happened, and they’d say, “I was scared for anyone to know that I was pregnant.”

We thought, “There has to be somewhere to go where you’re not scared when you become pregnant.” We wanted to make sure that women who were pregnant had access to people who could explain “derivative neglect” and what they could do so they had the best chance that they would never be separated, not for a minute, from their baby when the baby was born. We did not want pregnant people to expect a new baby in fear.

Another reason it is so important to have somewhere to turn for advice and support is that, if you are disappearing because you are scared, it might mean you are even avoiding your prenatal care provider or that you’ve stopped participating in supportive services that were helping you. All of that might be bad for you and bad for your developing baby. It is best for the child if the mother feels supported. That’s why we call it, Healthy Mothers, Healthy Babies. So now, because that program has gotten out there, we sometimes have pregnant people come to our office and say, “I grew up in foster care. I’m terrified that I’m going to give birth and my prenatal provider is already talking about drug testing me.” Or whatever it is in their situation.

We provide multidisciplinary support to the pregnant person early on, help connect them to prenatal care if that’s what they want and help connect them to housing if needed. When you become pregnant, there might be more housing options for you in New York City and we want them to know their choices. We address whatever legal barriers there may be: Is the person receiving benefits? Is the person getting WIC? Is everything in place? Does the person need provisions for the baby? What will ACS’s concerns be and how can we get ahead of them?

If you are not able to access this program, you still want to take these steps to have the best chance of preventing removal of your newborn. Go to prenatal appointments, stay in services and work with your attorney and organizations in your community to make sure you can show that you have a healthy home ready for your baby.

Q. How do birth doulas help?

A. We connect our clients to birth doulas who are there when they give birth. Birth doulas work with your midwife or doctor to make sure you are empowered during the birth, so you can say to the doctor, “I don’t want medicine,” or, “I want to try it this way or that way.” Giving birth can be a disempowering experience and it shouldn’t be. Birth doulas are dedicated to being almost like a parent advocate—like a laboring woman’s advocate. We have provided training to a number of doulas in NYC about child welfare and about ACS so they can advocate for pregnant people if ACS shows up, because it wasn’t an experience they were as familiar with. Parents have told us that they feel empowered by having a doula.

The best part is that we have managed to keep babies home. We’ve had ACS come to the parent’s bedside after the parent gives birth and the parent is not alone—the advocate is there and the doula is there and we are all problem solving together. We force ACS to think about the family differently and work with us to keep them together. It’s an interesting new way to think about things.

The key is not to wait until the baby is born to get your advocacy team around you. What we were finding before is that ACS would take the baby, but when we’d go to court we would win the hearing, and they’d give the baby back. But those hours separated in a newborn’s life are everything—nursing and bonding are disrupted and it is so emotionally and physically traumatic for both the mother and the baby. We thought, we have to try to avoid that happening whenever possible. Even for parents who are not in a perfect place in their lives. Even if there is a problem—maybe the mother is in a spot where they’ve got underlying mental health issues or drug issues that they need treatment for—that doesn’t have to involve separation. The priority must be keeping families together, rather than punishing parents in a way that ultimately hurts their children.

There are ways to keep mothers and babies together. If our system weren’t not so intent on punishing the mother, we might be more creative about how we are able to do that.