An Interview with Emma Ketteringham
Systems built on good intentions can be the most dangerous.
This interview with Emma Ketteringham, managing director of the family defense practice at the Bronx Defenders, was conducted and condensed by franknews. Originally published 8.19.20.
Emma | The Bronx Defenders is a public defense nonprofit located in the South Bronx. It was founded in 1997 by a group of public defenders who were committed to really redefining how people in criminal legal proceedings were represented. They were some of the thought leaders in a practice called holistic defense.
Really the best way to understand holistic defense is to see it as representing a whole person, rather than just a person in the case that they have. It requires thinking about how contact with the criminal legal system has affected or might affect every aspect of their life.
Is it affecting their employment? Is it affecting their housing? It also asks, why was there this contact with the criminal legal system in the first place? Is there a way to address whatever drove a person into the system?
frank | How did you get involved with the family practice specifically?
When I started, I began to talk to my clients about the impact contact with the criminal system had affected their families and I learned some pretty harrowing facts. Even if I was able to resolve someone’s criminal case favorably, without a criminal record or without jail time, I would learn that as a result of that arrest, the family had come to the attention of the so-called child protection system - and I say so-called because I think whether they actually protect children deserves interrogation, but just to use a more recognizable title. Every state has such an agency charged with investigating families for abuse or neglect of their children. In New York City it's the Administration for Children’s Services or ACS. I began to learn that the arrest, although that had been resolved quickly, had ignited an absolute nightmare in family court with ACS. It had led to intrusive surveillance of their family and for many, the removal of their children from their care. So I started representing my clients in family court.
We found a broken system. We found parents there who were not being advised of their rights or given the necessary information to get their children back. We found children who were languishing in foster care unnecessarily as a result. The city itself was looking at family courts at the same time and finding some of the same things. In 2007, New York City created family defense providers - institutional public defender offices to represent parents in family court proceedings. The Bronx Defenders then expanded to also represent parents in these cases, and since then I have been involved in the practice.
How many people are you working with at one time?
Today we have a practice that consists of about 50 lawyers, and about 25 social workers and parent advocates. One key facet of holistic defense is that our clients don't just get a lawyer assigned to their case. They also work with a parent advocate or a social worker who does a lot of the advocacy and work with the family outside of the court system. We work in those holistic teams and we represent about 2,300 parents at any given time. We pick up about a thousand new parents each year - there are cases that resolve and cases that come in.
It’s important to note that New York City is one of the few places that provides a public defense model to parents in these kinds of cases. The right to a lawyer is not a US constitutional right, like the right to a lawyer when you're accused of a crime.
It is up to the states whether or not you have the right to a lawyer when the custody of your children is at stake. Most states do have that right, but New York City is really one of the rare places that have an institutional holistic model of representation for parents. The implementation of institutional holistic defense providers has had an incredible impact. Children are spending fewer months in foster care in cases where we represent the parents, as compared to cases that don't have us as their lawyers.
Can you help me understand how ACS works?
Sure. So, a call is made to the state central registry to report a family for child abuse and neglect. You have probably heard the term “mandated reporter” - the folks who, by law, have to report suspected abuse or maltreatment - doctors, teachers, social workers, and nurses. But you don't have to be a mandated reporter to call in a report. In New York City, neighbors can call and report, exes can call and report, and reports can even be anonymous. Then, if the report is accepted by the state central registry, it is dispatched to the child protective agency in the area where you live. In New York City, that's ACS. They are then mandated to go out and investigate.
ACS does not get to pick and choose which families they investigate. If they get a report that was accepted by the SCR, they must go out and investigate. Once they go out and investigate, however, they have a range of responses and they have very broad discretion. Investigations are very intrusive.
Essentially, these cases begin with a knock on your door at any time of day or night. The ACS case planner can go accompanied by a police officer, they don't always go accompanied by a police officer. They gain entry to the home and then they start their investigation. They do not have to disclose to the parent who made the report. In fact, some reports can be anonymously made to ACS. They do an extensive investigation, which varies a bit depending on what the allegations are, but those investigations will involve speaking to the parent, doing a house inspection, asking to see all the rooms of the house, asking to see if there's sufficient food in the cupboards and in the refrigerator - and that's regardless of what the allegations are, an analysis of food. Then they will also ask to speak with the children, and they will speak to the children alone and separate from the parents. The people speaking to children are not social workers, because they are not required to be.
I've had parents complain to me that the first time their children ever heard about drugs was from an ACS case planner asking them about it. The first time they ever heard about child abuse was when an ACS case planner was interrogating them.
And the investigation can also include body checks. And the way it's written about in ACS training manuals is, "observe the parts of the body that are normally covered by clothes." So these can be extensively intrusive investigations.
What happens next? What happens if they find evidence of abuse or neglect?
They can do one of four things.
One, they can find no evidence and close the case and say, I'm very sorry. I just completely traumatized your family, but now I'm going to close the case. That would mean that you're not listed anywhere on any sort of state registry as a child abuser, you are not brought to court, and you do not have to engage in services.
The second thing that they could do is say there's some evidence here of abuse or neglect and we do have “concerns” - “concerns” is a big word in the family surveillance system. And then they might say, we'd like to send you to treatment. Maybe we'd like you to go to a drug treatment program. Maybe we'd like to connect you with mental health services, but we're not going to file a case against you in court. We would just like to surveil you outside of court - they say “supervise” - but basically what they're saying is, if you do what we say, this won't get worse. And many parents opt for that. They comply because they're so fearful of what might come if they don't. And so often all this surveillance and additional services just burdens families and utterly fails to actually strengthen them.
The third thing that ACS could do is say, we're not going to take your children away from you, but we are going to file a case against you in court, and that's because we think we need an extra layer of supervision over your family. This involves a more intense level of surveillance, and if you don't do what the agency says, the court is there to enforce the agency's demands by either ordering you to do it or taking your children away from you if you fail to do it.
And then finally, the most powerful and harshest thing that can happen is that ACS can remove your children from your care right then and there when they investigate. Every child protective agency in every state has what are called emergency child removal powers. They can take your children out of your home, place them with strangers if you have no relative to take them, and then give you a date to appear in court.
And remember, the vast majority of parents don't have access to a lawyer until they're brought to court. People who hear about this process for the first time and perhaps have never had to deal with this agency themselves will say, "Oh my gosh, I would call a lawyer right away." And it's like, right, because you can afford to, and you might have one that you know to call. But if you have to rely on the system to assign you a lawyer, because you can't afford to retain one privately, you're not going to get that lawyer until your first appearance in court.
One of the major innovations that we made in our practice over the last couple of years was to create a hotline so that parents could call us at that moment. I think this has been the most effective in changing the trajectory for these families. When I first started doing this work, I was meeting parents whose children had been taken and they hadn't seen them in weeks. Now, when they file against you in court, if you're assigned to our office, the first thing we are going to do is figure out if we can ask for a hearing to get the children either immediately returned or returned soon. I think that's where we have had the most impact – we litigate those hearings often and we often win them.
Most people assume that if a child has been taken away by the government from their parents, they must be experiencing incredible abuse at the hand of that parent. But what we have found is that about 24% of children who are taken, go right back home once the judge reviews that decision, and almost all children go home eventually. And that's because that is when the parent finally has a lawyer and the case is heard by a judge and the parent can put forth their side of the story. Many of the removals we see are because of mistakes, miscommunication, misinformation, and ACS not doing a good enough job to prevent the removal in the first place.
I wonder what sorts of things they look for when they decide to remove children - and how poverty plays a role in determinants.
I think that when we look at drugs, we can see what the system is truly about. We know that if all the children were taken away from all the parents who use drugs, there'd be a lot more white, wealthy children living in the foster system than there are right now. So there's something else going on here than keeping children safe.
When it comes to who is investigated and for what reasons, what we see is that the vast majority of the parents of children in the foster system have not abused or abandoned their children. They are often not even charged with abusing or abandoning their children. The vast majority of parents are charged with something called neglect, and the way neglect is defined by every state law is very closely intertwined with poverty.
In New York, it's defined as the failure to provide your child with the minimum degree of care. Well, what's the minimum degree of care? To one judge, strict parenting with a spanking does not fall beneath the minimum degree of care. To another judge, it might. To one judge, using marijuana, might not fall beneath the minimum degree of care. To another judge, that might. The problem is that it is such a subjective standard. It's not like the criminal legal system where you have crimes that are defined by a penal code - these child protective cases leave much more room for discretion. It often comes down to the subjective child-rearing views of the observer - first the caseworker, then the prosecuting attorney, and then the judge. That's one problem.
Children below the poverty line are 22 times more likely to enter the foster system. That is one strong indicator of what these cases are truly about.
The cases we see are mostly about food insecurity, housing insecurity, not having safe, and adequate childcare- all the things that we've decided, as a country, to not provide to struggling families. This reflects our country’s unwillingness to provide true support to struggling families- the support they need to raise healthy children and to rectify past and present racism in how certain families have been supported while others have not.
Right now, our country is calling to defund the police. That is because we understand how they are hurting and harming people who live in poor communities and who are predominantly Black and brown. The so-called child protection system can be understood as delivering the same harm. The same communities that are overly surveilled by the police, that experience higher rates of arrest, are the same communities that experience disproportionately concentrated surveillance by the so-called child protective system and experience harmful family separation at the hand of the government.
You can take maps of neighborhoods and where you will see higher arrest rates, you will also see greater child protective case concentration. You will see that in the same communities where there are greater higher rates of arrests and rates of incarceration, you will also see higher rates of child protective surveillance and family separation. The systems are cut of the same cloth. It is because of WHO lives there and not WHAT is happening there.
Both systems are used to surveil and control classes of people.
Do you think there's part of ACS operating in good faith?
I think that ACS is full of people with very good intentions.
But systems that are built on the good intentions of some, for others are the most dangerous. The fact that the intentions are good often serves to block a serious interrogation of their impact.
What is the disconnect between ACS’s stated mission and what happens in practice?
When we start to find answers to why we have a system of mass incarceration, we uncover the same reasons that we have a foster system that looks the way it does. To say "Oh, but there are children who are abused. So this system is necessary” is the same thing as saying that, well, there are folks who commit crimes, so the industrial prison complex is necessary. I don't think that's true. I think we can reimagine a completely different response to families that are struggling with caring for their children. And we have never done that. While I think that ACS and other child protective systems across the country might be made up of many highly motivated people to do right by children, they are still playing a role in a system that is the product of racism in this country. It is a system that keeps certain populations controlled and down.
The reason why I think people have a much harder time understanding this system that way is because they don't really understand exactly how it operates. We're waking up to the fact that putting someone in prison for the third time, caught with marijuana in their pocket, is not the response of a civilized community. Well, why then is separating children from their mothers because she needs treatment for a mental health issue imaginable? It would be unimaginable for families of privilege to be separated from their children and to have that relationship legally severed forever because the parents are experiencing an issue.
It is unimaginable. I keep coming back, thematically, to paternalism, and this weird game of morality – which immorally devastates children in this case.
This is a system that drips in paternalism. I often think of it as the suitability police in many ways. There's so much discretion in the definition of what is neglect.
And then you have it left up to individual subjective discretion to determine whether the situation before them falls within it, which leaves an incredible amount of room for one's own bias and one's own prejudice to seep into those decisions.
The kinds of allegations they bring against, predominantly mothers, mind you, are infused with judgment, and infused with ideas of what is suitable and what is not. One of the challenges that our lawyers, social workers, and advocates have while doing these cases is trying to address that before a judge - like, are you really raising the fact that she uses marijuana? We know that the parents in these other higher-income neighborhoods are also using marijuana and no one would dream of knocking on their door and dragging their child out of the house. It just would not happen. So how do you justify this as to why?
I just don't think that you can ever escape the fact that this is a system, regardless of the purpose that built it, regardless of what people's individual motivations are who work there, it is a system that ultimately surveils and controls populations of people. It doesn't really matter what they meant to do with it. That is how it operates.
We know that abuse and neglect are equally likely in all income brackets and among all races. Yet this system has profound race and income disproportionality issues. Part of the reason for it is that our country has always equated being poor with individual failure or personal deficit, rather than the failure of our government to support all people equally.
Poverty has always been viewed as an individual fault. That gets us to another piece of the system that is so irrational when you actually interrogate it. You meet a family and you learn that the mother doesn't have childcare, so she's going out to her back-to-work welfare appointments, and leaving her children home alone in the apartment. And she's doing that because if she doesn't make those appointments, she will lose her benefits, which then would hurt her entire family. So she's taking a calculated risk. The response then to her is not to get her the childcare, it is to send her to a parenting class, to teach her not to leave her children at home, which guess what? I think she knew that. Second of all, she'll probably end up, because her children have been removed from her, losing the very benefits she was working so hard to preserve because now her household has been reduced, so she no longer has the children in her care. And then we then give the money to the foster parent so that the foster parent has money for childcare. That's why it is a punitive system, even though it claims not to be. It claims to be a therapeutic system. It claims to be a system that's helping families take care of their children. But how? How is that response therapeutic? The trauma to those children who then have to go live with a stranger, maybe transfer out of their schools, maybe only see their mother once a week at a foster care agency in a room under the watchful eye of a case planner, where she can't naturally parent them and love them, that digs a wound that never heals.
And yet we're talking about a situation where someone needed a babysitter. They need to believe there's something so fundamentally flawed about this woman for not having the resources for childcare that that's the response. And it's so infused throughout the entire system from case planner right up to judge that it's hard to understand quite frankly, how it still exists.
I don't understand how it can still exist today. I only hope that with these real cries for defunding the police, we turn our eye to also examine this system as well, because it operates the exact same way, but it's almost more sinister in the sense that it is children, not the adults, who serve the time among strangers and in institutions. If you look at all of the systems that do harm, whether it's to poor communities or Black and brown communities, they are all designed by people who will not be subjected to these same systems.
Even well-intentioned people set about fixing what they perceive to be broken, fail to realize, it might not be broken, just different. And they fail to ask these families what it is that they need. The child welfare system is a very clear example of that dynamic. Obviously policing, incarceration, and education are as well.
At the end of the day, to truly address the inequities, white people have to let go of power. They have to back away and say, what is it that is really necessary to improve outcomes? We need to look to a real redistribution of resources rather than a web of social services that no one has even identified as wanted or needed.
How do you see the fear to relinquish power play out structurally in the ACS?
ACS and most child protective services are very large, very well-funded bureaucracies. You end up with a very fear-driven system where people are scared to not remove. What I have found over the years is that the case planners, the ones in the organization who are closest to the family, often call us and say, "I'm so glad you won that hearing to get the children home. Those children never should have been removed."
Sometimes the caseworkers recognize that their agency does harm, but it is like a machine that keeps operating the same way, despite all of the mounting evidence that their approach does serious harm to the children they purport to be saving.
It is really important for people to know all the outcomes for the kids who grow up in the foster system, because, as it turns out, the state does not make such a great parent. You've removed a child from what might have been a very imperfect situation, but where at least they had one adult in their life who loved them. Then you put them in a foster system where they can't even claim that. The outcomes are not good.
I was talking to a youth organizer out in San Francisco the other day and we were talking about how telling it is that the word” love” is hardly ever uttered in a family court courtroom. The concept of the importance of love is never raised. And yet love is what we are taking away from children when we separate them from their families. We know love is critical to a child’s self-esteem, and to their self-value. And no one ever talks about it.
The law says nothing about the importance of love whether it's between a mother and child, father, and child, or between siblings, even, and yet we all know that as humans having that in our life is critically important. And this is a system that makes decisions without even taking that into consideration. That is another reason why it is so far removed from what we really need.
The big hope is that we, as a country, actually examine what poses the most risk to our children. If we were to do that we would wake up to the fact that it's not, in fact, their parents that pose the greatest danger to children. One of the greatest dangers of this system is that everyone, every politician, every elected official, gets to pretend that we're spending resources and we're doing something about what poses risks to children.
If we were really to examine what poses a risk to children, it wouldn't, of course, be their parents. It would be failing schools. It would be a dangerous neighborhood. It would be the housing conditions that are deplorable and uninhabitable. It would be air. It would be water. These are the things the government needs to expend money on addressing.
Children in the Bronx have the highest rates of asthma. Why aren't we spending money, cleaning our air instead of taking them in the middle of the night to a children's center and putting them in a stranger's home because their mother uses marijuana?
It's a huge red herring that keeps us from addressing the inequities and racism that impact children in this country. It makes everybody feel really good - especially white liberals - to think that we're doing something for the children by saving them, when, in fact, we're doing them direct harm, destroying communities, and doing nothing about the things that actually pose the greatest risk.
It's like driving a Prius.
(Laughs) Yeah.
Another thing a lot of people don't know about - is that today's child protection foster system reflects its origins.
One needs to go back into history and see when we started separating children from families and why. We have always used family separation as a method of control and as a tool to uphold white supremacy. We have always separated children from families that were considered outsiders and threatening to people in power - the system has turned its eye on every population of new immigrants moving to urban areas, for example. We worried about the impact that these families would have on this country's values, so we started a practice of removing children from their parents. We then justified it by promulgating racist ideas that their parents were not suitable and were unfit to raise them. And when you look really carefully at today's system, it's doing the same thing today.
When you look at this system and you see that it is predominantly Black and brown children who are taken from their parents to be raised by the state, it is clear that only a system that holds little to zero regard for that child, that child's bond with their parent, and that parent's bond to that child, could ever do that. It would not happen to a family whose bonds are valued.
I was always told to be wary of pity - that it skews our ability to see people clearly as individuals. I wonder if you think that this translates into adoption in the United States as well.
Pity is a very dangerous motivator, especially, I think for, white women, because it means you're about to intervene or adjust something that you might not fully understand, or something that you're only seeing through your own lens. And you are usually not examining your motives for how you are seeking to hold onto power through your actions. And it's really dangerous. And I think this one of the primary motivators in the creation and operation of the whole child protective system.
One thing I want to note about adoption is that in private adoptions there has been a move toward open adoptions. There's the recognition that even if you can't be raised by the person who gave birth to you, it might do harm to just legally cut that relationship off. We are trying to push dynamic and flexible and creative family arrangements forward in the foster system, but of course, it is nowhere as welcome or as prevalent.
So for example, we do have cases where someone cannot safely be or they don't want to be the full-time caretaker of their own child. In those situations, if our client wants us to, and usually they do, we fight for some room for them to have a relationship with their child. The same arguments supporting these kinds of arrangements in private adoptions also make sense here.
Why wouldn't children prefer their own childhood narrative to be - yeah, that's my mom, I can't live with her all the time because she's got X, Y, and Z going on, so I live over here, but, I see my mom, I have a relationship with my mom, and I know she loves me. Or even if a child rejects their mother, to do that on their own terms is her human right and should not be done for her, on her behalf, by a government that does not serve her interests equally. Flexible and open arrangements that put the children at the center are clearly the trend in private adoptions for a reason, but not in this system, which was, again, designed by people that have families that are not their own in mind.
There's a big concept in our system that drives everything and it is very detached from human experience, and that is permanency. The creators and drivers of the foster system believe that permanency - a final permanent, living, arrangement for a child, no matter what that is, is the most important thing for children and the system must move as quickly toward achieving that goal as possible. While the system technically prioritizes keeping children with their families of origin, the tension with achieving that goal is the system itself which is rushing toward permanency, no matter what it might be. Looming over all of these cases is the Federal Adoption and Safe Families Act (ASFA) which basically requires permanency to be achieved quickly or for children to be adopted. These timelines are out of whack with which the vast majority of families are facing in the system.
So, if a child’s mother can't turn around her dependence on the use of an illegal drug in 15 months, that is it. The system rewards moving swiftly toward the adoption of her child if she fails within that short unrealistic time frame. If she fails to achieve that, then the state is encouraged through financial incentives created by ASFA to come in and terminate parental rights immediately so that we can achieve permanency for this child. That does not comport with the openness that is encouraged in the private adoption world and does not comport with what is in the best interest of children and families.
And frankly, to be honest, it’s a farce. Even when the court terminates your parental rights and children are adopted away, children often find their way to their parents regardless. That is just an inevitability. I've had many, many 18-year-olds come into my office and say, “Hey, you're a public defender. You represent the parents. This is my mom's name. Did you represent her? What happened in my case? Why didn't she want me?” And I've ordered the records and gone over them with them and showed them the fight their mother put up for them and helped them to understand the narrative that was hidden from them in the name of their own happiness.
Understanding your own self-worth is so tied to your parents, it feels so obvious and fundamental.
But therein lies the cognitive dissonance of this system - I think this system believes that not all parents are worthy and believe that the parents before them are not to be valued. This is because of racism and our society’s belief that poverty reflects a personal fundamental flaw. That's the central problem. This system would not operate the way it does if we valued the families before it.
People hold such misconceptions about the system. First and foremost they believe that all the parents in the system have abused their children and that all the children in foster care have been abused. That is a fundamental misconception that must be changed. And changing that misconception would not be enough. Because when you realize that the system plays a role in the distribution of power in our society and largely operates to uphold white supremacy, you realize that this is not a system that can be tinkered with or reformed. It is a system that must be abolished and replaced by a completely different approach to family poverty.
The understanding of this system is just beginning. The world was horrified by its witness of the removal of children from their families on the border. It allowed people to see and hear and experience family separations viscerally. The next step is to interrogate whether or not they're doing those unnecessary and traumatic separations in their own cities, counties, and states. Because that exact thing is happening when ACS intervenes.
This is our chosen response to poverty. One of the most disappointing things about the reaction to what people saw on the border was the reaction of many privileged parents. Many immediately went to the place of believing that becoming a foster parent was the answer. As if that was better. As if that will save the children ripped from their parent’s arms. They believed that they were the best antidote. They think they'll just wrap their arms around those kids. But you cannot make up for that harm. And the only reason why you think you'd be an adequate substitute is that you're not seeing them the way you want your own family to be seen. Because you would never assume that some stranger could hug and comfort your child better than you, right?
I have been reading a lot about carceral feminism and really thinking about some of the most well-intentioned programs, the child protection system, of course, but even responses to domestic violence or other white identified social problems. And often what you see is white women's answers and solutions that end up being really harmful to other communities in ways that they don’t think through.
It is interesting to contrast the traditional liberal ideal of interjecting and helping people, with the traditional conservative response of individual freedom in this system.
People say to me, “Like - what are you, a libertarian?” No. I think that we need to look at what role the government should play, not that the government should not play a role. I think we need to look primarily at the distribution of resources and power.
We need more money, more support, and more care for people. And most importantly we need to ask communities what they need. We need to reimagine what support truly looks like.
It requires a shift in political imagination.
Exactly right. Just like people who are asking to defund and abolish the carceral system have asked us to reimagine what that could look like, we need to do the same with the current so-called child protection and the foster system. It’s cut from the same cloth. There is another way to imagine keeping children safe and with their families who love them too. And yes, it would require seismic change because it would really require us to really look at how resources are distributed amongst people, and who has what to help them raise healthy families.
There are so many well-intentioned people, even progressive people, people who are really almost considered radical in other areas, that just don't believe that this could be happening the way it is happening. But it is happening. And it is our responsibility to end it.