How Derivative Neglect Remains a Tool for the Destruction of Black and Brown Families in New York City Family Court

Imagine you have been sober for three years, have a steady job, and a new apartment. You just gave birth to a healthy baby girl and are excited to bring her home. You are still in the hospital when a case worker from the New York City Administration for Children’s Services (ACS) comes to your hospital room, asking you questions about your son. Three years ago, you had been at your worst; eighteen years old, homeless, struggling with addiction, and in an abusive relationship. Neighbors had called the police one night after they heard you arguing with your boyfriend in his apartment. The police informed ACS, who opened a child protective investigation into you.  

Because of your struggles with addiction and housing instability, ACS filed a neglect petition against you in New York City Family Court. To avoid drawn-out litigation, you agreed to take a plea to a neglect finding and allowed your son to stay with his paternal grandmother until you got back on your feet. Because of that neglect finding from five years ago, ACS tells you they are going to be filing a new neglect petition against you in the name of your newborn daughter, a daughter you have not yet had the chance to bring home.  

I. Background 

This hypothetical scenario plays out all over New York City due to a concept called “derivative neglect.” Section 1046 of the Family Court Act (FCA) states that “proof of the abuse or neglect of one child shall be admissible evidence on the issue of abuse or neglect of any other child of, or the legal responsibility of, the respondent.” While this portion of the FCA pertains to the admissibility of evidence, in several cases, courts have found evidence admitted under this section to be persuasive or even sufficient to support a finding of neglect against a non-subject child, even if there are no allegations of neglect against that child.  

The idea behind the “derivative” standard is that a court should not have to wait for a “broken bone or shattered psyche before extending its protective cloak around a child.” In a vacuum, this intention is logical, even noble. However, the reality of derivative neglect drifts far from its original legal intention and leads to ongoing family separation and state intrusion, particularly into Black and brown families.  

II. Derivative Neglect in Action 

To understand the impact of derivative neglect on Black and brown families, it is important to understand the broader context of ACS investigations in New York City. While only 48 percent of the city’s population identifies as Black or Hispanic, they comprise 81 percent of ACS investigations. Further, communities with high poverty rates are substantially more likely to be subject to ACS involvement and surveillance. Brownsville has a 39 percent poverty rate and is subjected to 31 investigations per 1,000 people, more than 2.5 times the city average. What this represents is not that Black or Hispanic parents or parents living in poverty are more likely to be neglectful or abusive, but rather a systemic pattern of policing poor, Black, and Hispanic families and pointing to poverty as evidence of neglect.  

A derivative neglect determination means that one open ACS case can follow a family for years, leading to additional neglect petitions and court involvement for future children. The standard under which a child may be removed from a parent under the guise of derivative neglect remains particularly vague, and all too often results in a child being removed from their mother’s care directly after birth. This tells mothers that no matter what they do, or how much they work to change their lives, they will still be subject to the scrutiny and arbitrary standards of ACS investigations. It becomes the burden of the parents to prove that they have substantially changed since their prior ACS case, rather than the burden of ACS to prove that the child is currently being or at risk of being neglected. This means that for mothers who have ever had involvement with ACS, pregnancy equates with fear.  

Once a child is removed from a parent’s care, it can take months to achieve reunification, even if there is no evidence of immediate risk to that child. This means that newborn children end up in foster placements, new mothers are denied the chance to breastfeed, and families—particularly Black and brown families—are denied the opportunity for family unity and stability, all based on a neglect finding from years prior.  

Conclusion 

Derivative neglect can have a legitimate purpose for protecting children in instances of serious, prolonged abuse. In practice, however, it leads to the over-removal of children and state surveillance into families, years after the conclusion of their initial family court case. FCA § 1046 must be reformed to more clearly lay out when removal based on derivative neglect is proper, and to emphasize that evidence of past neglect alone is not sufficient for the removal or finding of neglect of a non-subject child. 

Chloe Grill

Class of 2027, Staff Member