Nearly 50 legal organizations, nonprofits and scholars are urging the New York State Court of Appeals to weigh in on a rare child welfare case involving a father accused of harming a fetus — by not preventing his pregnant partner’s drug use.
Cynthia Godsoe, a Brooklyn law professor and former children’s attorney, is among those who signed on to a friend-of-the court brief this spring in support of a father identified as Joe B.
The case against him is unusual, she told The Imprint, because it centers on an allegation that he neglected an unborn child, even though New York does not include fetuses in its laws regarding “personhood.” It also “sets a terrible precedent’’ that threatens to expand the state’s power over pregnant women, Godsoe and other youth and reproductive rights advocates argue.
Their amicus brief asks the court to hear the appeal, and to reverse the family court’s neglect finding against the father.
It ‘s unclear when the appeals court will consider the case, according to Jesse McGeughlin, an attorney with the nonprofit Bronx Defenders, one of several legal groups representing B.
The father’s litigation stems from a case that began in 2018 with the child’s mother, identified in court documents as W. That year, the Administration for Children’s Services filed a neglect petition against her, accusing W. of using drugs during her pregnancy. After she gave birth, the baby tested positive for methadone, a medication prescribed by doctors to help people manage opioid addiction. Though protected by federal law as a legally prescribed drug treatment, the use of methadone has placed some parents in the crosshairs of child welfare investigations.
W.’s parental rights were eventually terminated.
“This case sets a terrible precedent and is really extreme, both because it concerns a fetus and because there was no way for the father to control the mother’s actions outside of force.”
— Cynthia Godsoe
In 2023, the city agency filed another petition against the child’s father, B., alleging that he had “failed to exercise a minimum degree of care to stop” W. from using drugs when she was pregnant, according to court records. A family court judge agreed, and B. surrendered his parental rights, his attorneys said.
B.’s first appeal was rejected. His latest — brought by The Bronx Defenders, the Family Justice Law Center, and the NYU School of Law Family Defense Clinic — asks the state’s highest court to overturn the lower court’s decision. In an amicus brief, legal advocates urge the court to “carefully consider the sweeping implications that affirming a neglect order — particularly one premised on the notion that a prospective father should be forced to control the actions of a pregnant partner — will have for the rights of pregnant women who appear before New York’s family courts going forward.”
Publicly available details on the case are sparse because the records are sealed, like most family court files.
The New York City Law Department declined to answer The Imprint’s questions on whether this case represents a reproductive rights issue.
Do you have experience or tips you’d like to share about drug testing and neglect cases in family court? E-mail ssarkar@imprintnews.org
B.’s case is rare but not unheard of. The 2022 report “Harming Fathers: How the Family Court System Forces Men to Regulate Pregnancy,” found 14 states with documented cases in which a father’s alleged “failure to control” his pregnant partner’s substance use resulted in a child neglect case being filed against him. The report — produced by the reproductive rights group Pregnancy Justice — identified 14 such cases in New York between 1991 and 2018.
Some parents cited in the report described feeling helpless.
“How am I supposed to force her to stop?” one California father is quoted as saying. “I have been supportive and sent her to get help. I don’t own her; she is not a pet. I cannot force her.”
Godsoe is among those calling for better protection of dads in similar circumstances.
Since becoming a law professor in 2007, she has published several papers covering a wide range of child welfare issues — from kinship care and parental rights in CPS investigations, to reforming the system for criminal justice-involved youth. In her recent 2024 paper, published in the Boston University Law Review, she explored why more liberal states such as New York, Massachusetts and California are often more regressive when it comes to parents’ rights in child welfare cases, compared to red states like Texas. Her article highlights systemic improvements for thousands of families that have emerged from “unusual, pragmatic alliances between libertarians espousing ‘family values’ and public defenders concerned about racial justice.”
“How am I supposed to force her to stop? I have been supportive and sent her to get help. I don’t own her; she is not a pet.”
— California father interviewed by researchers
In two lengthy interviews with The Imprint, Godsoe drew on her nine years as a children’s lawyer in New York and California to discuss why she believes this rare case is unconstitutional under New York law, how fathers are treated in family courts, and what she considers to be mistaken assumptions about parental neglect and drug use.
The following interview has been lightly edited for clarity and length.
When you worked in the family courts, what were your observations regarding the treatment of fathers?
When I was practicing, fathers — who are almost always unmarried in family court — were often treated in a bad way, ignored even when they were present and able to care for the child when the mother may not be able to. There are totally wrong and racialized assumptions about unmarried fathers. People have these very bigoted assumptions that men, especially men of color, are not caregivers.
It has gotten better for dads in New York, but it’s always two steps forward, one step back.
B.’s partner was using methadone as a way to deal with her opioid addiction. As The Imprint has reported, doctors legally prescribe methadone to patients at risk of relapse, yet many parents around the country are still pressured by judges to stop taking their medication, under threat of losing their children to foster care.
What are the issues the courts need to be aware of when determining whether a pregnant parent’s drug use amounts to neglect?
I do understand that people worry about infant health, and it seems scary for people to be using drugs, although the least healthy things are actually legal — like smoking cigarettes.
But doctors have been saying for decades that the best way to get healthier babies is to not make it a really big risk for pregnant people to seek health care. The official statement of the American Medical Association has always been that harm reduction is better to prevent severe relapse.
And that’s exactly what these kinds of cases do. They dissuade people from seeking any help, whether for mental health, physical health, substance use disorder, or because the doctors or mandated reporters or someone else might find out about it.
We know little about Joe B.’s case, since court records are sealed. But you and others who signed on to an amicus brief in the case argue that it raises novel questions: Did New York’s family court improperly expand the definition of “child neglect” to include fetuses in the womb?
Yes. New York does not have a personhood statute, which is basically a statute that says that a fetus is a person — for a lot of reasons, including torts damages, or if there’s a car accident. So the law should not expand to include neglect of a fetus.
Usually parents are charged for their own conduct — leaving a child alone, neglect, or using substances which makes you unable to care for the child. Mr. B. is being charged with not preventing the mother from using drugs — a charge which shouldn’t even exist, because the child was a fetus, and because we’re not sure that drug use even causes harm. But here, he’s being asked to prevent her from using drugs, which not only seems beyond what he morally or legally should do, but also is legally impossible. Even under Dobbs V. Jackson and the rollback of abortion rights, it would certainly be federally unconstitutional that another man could control a woman’s pregnancy.
You’re also arguing that this ruling essentially “requires a prospective father to control the conduct of a woman because she is pregnant.” Can you explain this further?
This finding is very punitive and could affect a parent’s job status, could affect whether a father is allowed to have custody or visitation of their other children. So it’s a very impactful finding.
It means that not only will people who become pregnant be under further scrutiny and control of the state, but that could even extend to people adjacent to them, whether they’re fathers or grandparents. You can imagine if it went further, to doctors, teachers, even neighbors — all of a sudden, everyone has a legal responsibility to prevent this person from using drugs.
How are they supposed to do that? Are they supposed to monitor them all the time, or physically kidnap them and keep them in a place where they can’t use drugs? I just don’t see how you can do that without involving some kind of force, which is saying that the state would forgive you, or would empower you to use that force.
In your time as a children’s attorney and since then, how has the role of fathers changed in abuse and neglect proceedings? Have you seen similar cases in New York, where fathers are accused of neglect when their pregnant partners are using drugs?
I have not.
There’s more and more cases where we see an unmarried father, usually of color, getting implicated when the mother is charged with something. I’ve seen cases where the father or the paramour are implicated — for example when they share drugs with the mother— but all of them were when the child was already born.
This case sets a terrible precedent and is really extreme, both because it concerns a fetus and because there was no way for the father to control the mother’s actions outside of force.
What outcome would you like to see — both for B. and others like him?
The case against Mr. B. should be dropped, since it’s only about the mother’s actions and her actions while pregnant. He should be able to have nothing on his record, and be able to parent his child with no constraints.
More broadly, people should be allowed to parent their kids without intervention from the Administration for Children’s Services and the family court — unless there’s a real, proven nexus of harm or potential harm to children. Support services should be offered to families rather than punishment.
Especially since this case is so expansive and involves a fetus, I would really hope that they take the case to clarify that this is not within the scope of the state’s power or the city’s power.
