A federal appeals court cleared the path on Tuesday forward for a father’s lawsuit that claims New York City’s Administration for Children’s Services (ACS) unconstitutionally separated him from his infant son for nearly three years.
The U.S Court of Appeals for the Second Circuit reversed a lower court’s decision dismissing the case. If the father is able to prove his case, the court found, it would constitute a violation of his and his son’s constitutional rights against un-lawful seizure and the right to due process on behalf of the infant. The claims against the City of New York and ACS caseworker Amar Moody will move forward to trial or discovery.
The case involves a father in the Bronx, referred to by his initials K.W., who sued on behalf of himself and his son, K.A., after a city foster care system allegedly removed the newborn from his custody without a court order. K.W. is seeking fair and punitive damages for the separation.
“My infant son was torn from my arms by ACS when he was just a few days old and put into foster care with strangers,” said K.W., the father in his appeal. “I fought with all my heart and might to get him back for nearly three years. After my son came home, we’ve been fighting to right that devastating wrong.”
On appeal, K.W.’s case attracted support from both constitutional law and children’s legal defense groups. In one amicus brief, the Center for Constitutional rights framed the separation of the baby from his father, who is Black, as a racial issue that has roots in racist policing. Another brief said the city “did not come close to meeting constitutional standards” in taking an action that causes lifelong trauma to children.
According to the civil complaint, ACS took custody of the baby based on the mother’s history of child neglect of her children by other fathers. K.W. himself was never accused of any fitness issues or wrongdoing.
Nearly a week after K.A. was born, an ACS caseworker Amar Moody told K.W. that he was removing K.A. from his custody on an emergency basis—without prior judicial authorization—because of K.A.’s mother’s history of ACS violations, despite not seeking a court order for the removal.
The city agency allegedly filed a child protective petition against the mother six days after the baby’s birth, without asserting any wrongdoing against K.W.
A family court judge granted this request on the view that based on ACS’s allegations against the baby’s mother, giving the father custody would be against the child’s welfare. It made no mention of the fact that the father had been caring for the baby since his birth, according to the court papers.
K.W. was denied custody of his son for nearly three years, with the baby housed in a foster home. Though K.W. was never accused of any misbehavior, he had to file a paternity petition and complete a service plan requiring parenting safety classes. He didn’t regain custody fo his son until two years and eight months later.
The court found several different claims that K.W. had his constitutional rights violated should move forward.
First, they found merit to the claims that Moody’s removal of K.A. from his father’s care without a court order or the requisite emergency circumstances could amount to a violation of K.A.’s Fourth Amendment protection from unreasonable seizure.
The court also found that if K.W. is able to prove that Moody intentionally or recklessly omitted critical facts from the court petition—such as K.W.’s status as the father — it would amount to violation K.A. ‘s Fourth Amendment rights.
They further proposed that by keeping the child in state custody for nearly three years without initiating proceedings against K.W., the city deprived K.A. of his due-process rights. The court dismissed K.W.’s due process claim on the ground that it was time-barred.
A spokesperson for the city Law Department said that it is looking into the court’s ruling.
K.W. and his son were represented on appeal by the Family Justice Law Center, WilmerHale, Brustein Law PLLC, and Risman & Risman.
“This is an enormous win for Mr. W. and his son—and for fidelity to fundamental family rights,” said David Shalleck-Klein, founder of the Family Justice Law Center. “We’re thrilled that the family can keep fighting for justice to address the unconstitutional and unconscionable three-year nightmare caused by ACS.”