Lawyers for parents accused of abuse and neglect are suing the New York City court system over a proposed policy that had been scheduled to take effect June 22, allowing judges to order on-site, supervised drug tests in the family courts.
An attorney at The Bronx Defenders, the firm that filed the lawsuit Tuesday, said the practice would give judges “unchecked discretion.”
“When saying ‘no’ means unlawful separation from your child, that is coercion,” Trisha Trigilio, the firm’s director of impact litigation said in a press release. “Judges should not leverage the power of their offices to extract consent and circumvent the law. If the court wants a drug test, it can follow the law and issue a warrant based on probable cause.”
In response to The Imprint’s inquiry, Al Baker, a spokesperson for the state Office of Court Administration, said Thursday that “no decision has been made to initiate this program.” Baker declined to comment on the pending litigation.
Last September, two ranking judges and two court clerks issued a memo reinstating a pre-pandemic practice of on-the-spot drug testing in the Bronx, Kings, New York and Queens family courts. The memo stated that the testing will “enhance the court’s ability to make timely, informed decisions regarding child welfare and family safety.”
Under the proposed initiative, judges can ask parents and guardians accused of child abuse and neglect to voluntarily submit to the drug tests. A member of the court’s Drug Screening Unit who matches the court client’s expressed gender identity will supervise the urine tests. The drug screens will detect alcohol, methamphetamine, cocaine, THC, as well as medications widely approved to treat opioid use disorders, such as buprenorphine and methadone. The program will allow one week for retesting as a “crucial safeguard against false positives,” according to the court’s memo.
CPS frequently removes children from addicted parents, and drug testing is commonly ordered by judges at court hearings. But under current practice, judges must find probable cause and issue a warrant before a test can be ordered.
The Bronx Defenders filed the lawsuit in the U.S. District Court for the Southern District of New York. Along with the other plaintiffs — two unidentified parents currently involved in child protective proceedings in the city — they argue that drug testing should remain regulated, and ask federal judges to rescind the new program.
Similar onsite drug testing existed before the COVID-19 pandemic. Although the new proposal specifies drug testing is voluntary, it does not include any “substantive changes to prevent the judges’ prior coercive practices,” the lawsuit alleges. Previously, judges made “biased and harassing requests” of clients and “routinely penalized parents who refused to test.” The practice also exposed the “racial bias and inconsistency” rampant in family courts across New York State, which have a long history of being overburdened and under-resourced.
Judges have ordered caseworkers to remove children from their homes and to deny family visits when parents refuse to be drug-tested, according to The Bronx Defenders, a public interest nonprofit representing parents in the Bronx. Some parents agree to be tested, but later give up on their attempts to reunify because they can’t “bear the indignity” of urinating in front of court staff, court filings state.
“Parents who refuse to test lose their chance at increased contact with their children and do not have access to a timely appeal,” the complaint says.
