New York Appellate Court Strikes Down A State Practice Allowing Intrusive Surveillance Of Innocent Families

In a significant win for the liberty interests of parents in the care and custody of their children, yesterday a New York appellate court vacated and held unlawful a longstanding state practice that subjected parents who were never accused of any wrongdoing to ongoing supervision by local child services officers.  That supervision allowed state authorities the unlimited right to search homes and strip-search children in circumstances where only one of the parents, even when not living with the child, had been charged with abuse or neglect.

Ms. W. a mother of a young daughter, secured a protective order against the father of her child, who had acted violently against her.  Because of the domestic abuse, however, the child became subject to the family court and was released to the mother only on the condition that she submit to announced and unannounced searches of her home, and strip searches of her daughter, by child services.  The court order issued notwithstanding express findings by the court that the mother had done nothing wrong and had never lost custody of her child, and that the father did not and would not reside with her.  Subjecting innocent parents to on-gong surveillance by state authorities when the only wrongdoer was the other parent has been a longstanding practice of the family courts in New York.

In a landmark ruling, the Appellate Division, Second Department of the New York Supreme Court found that the governing New York statutes simply did not authorize such intrusive infringements of a parent’s fundamental right to the care and custody of his or her children.  The statues were written to safeguard children from abusive and neglect but could not be applied to an innocent parent when the only wrongdoer was the other parent.  As the court noted:

Since the institution of the family is deeply rooted in this Nation’s history and tradition, and it is the vehicle through which we inculcate and pass down many of our most cherished values, moral and cultural, that freedom of personal choice in matters of family life is a fundamental liberty interest. . . .  [T]he child protective statutes [therefore] have a twofold purpose: to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being, while also providing due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his or her needs are properly met.

The case was brought by the Family Justice Law Center on behalf of Ms. W.  Americans for Prosperity Foundation participated in the case by submitting an amicus brief in support of Ms. W. and her child.