Bronx Defenders and Arnold & Porter Kaye Scholer LLP filed two lawsuits Thursday against New York City's Administration for Children's Services, accusing the agency of discriminating against parents of color in its child removal decisions.

One suit seeks information from the agency about a 2020 internal racial bias audit and the agency's response to it. And the other suit was filed on behalf of a Black mother who ACS separated from her newborn a few days after his birth based on a positive marijuana test at the hospital.

Both suits are "necessary because despite years of public reports, family testimony — and even ACS's own audits and public commitments to becoming an 'anti-racist' organization — the agency continues to separate families and criminalize parents based on race," Arnold & Porter, which is representing plaintiffs in both cases pro bono, said in a release Thursday.

"We welcome this opportunity to partner with The Bronx Defenders on these critically important litigations," Arnold & Porter partner Michael Schissel said in a statement. "It is time for the judicial process to address the devastating racial inequities that ACS has failed to remedy on its own, and to bring to light ACS records surrounding the 2020 racial equity audit that so decidedly exposed ACS's discriminatory practices."

Chanetto Rivers, a Bronx resident who gave birth in August 2021, said in Thursday's complaint filed in New York federal court that she was denied the opportunity to bond with her son in his first week of life because the hospital she gave birth in tested her and the baby for marijuana without her consent, and when the test came back positive, the hospital alerted ACS.

The agency instructed the hospital to hold Rivers' baby indefinitely, even though he was medically cleared to go home, which was in violation of New York state law, the complaint claims. Cannabis legalization law the Marihuana Regulation and Taxation Act, or MRTA, which went into effect six months prior, prohibits child separations based on cannabis possession, the suit says. And even ACS' own 2019 guidance directed caseworkers not to remove a child or file a case against a parent for a positive marijuana test, it says.

"Yet ACS was so focused on its desire to separate a Black mother from her child that it ignored its own internal policies and violated this important New York state law," the complaint says. 

Arnold & Porter said in Thursday's release that Rivers' suit is the first to be brought under MRTA. In addition to claiming that the city agency violated the law, Rivers alleges the actions were racially charged. Data shows that New York City is far more likely to separate Black children from their parents than white children. In 2021, 1,267 Black children entered foster care, making up 47.1% of all children entering the system, while only 126 white children entered the system, comprising 4.7% of the total, according to data from the NYC Workforce Institute.

An ACS spokesperson told Law360 on Thursday that while the agency can't comment on specific cases, it would never separate a child based solely on marijuana use. 

"ACS is committed to keeping children safe, and, at the same time, addressing the systemic racial disparities that exist in child welfare-- New York City children and families deserve both," the agency said. "ACS does not indicate a case nor remove children based solely on a parent or caregiver's use of marijuana.  When ACS investigates a case involving an allegation of parental drug/alcohol misuse (regardless of what the substance is), ACS's policy and practice mandated under law is to assess the impact any misuse has or may imminently have on child safety." 

Although Schissel told Law360 the agency will have a hard time making this argument in court. 

"ACS says 'it does not remove children based solely on a parent's use of marijuana,' but that's exactly what it did here, and it's going to be challenging for them to argue otherwise," he said. 

Arnold & Porter also helped bring a case on behalf of The Bronx Defenders, asking a New York state trial court to require ACS to release information for which The Bronx Defenders had already filed a Freedom of Information Law request in December 2021.

According to the complaint, in 2020, ACS Commissioner David A. Hansell touted an agencywide racial equity audit conducted by an independent party. However, the agency did not release the results of the audit until four months after The Bronx Defenders filed a FOIL request. When the audit report was released in April, it became apparent why ACS had been reluctant to share it, the complaint says.

"The damning results concluded that ACS is a predatory system targeting Black parents, holds pervasive anti-Black stereotypes about the ability of Black parents to provide for their children, and presumes Black parents to be a risk to their children," the complaint says.

The report found that ACS is more likely to give white parents leniency with respect to removals and reunifications of children. It also concluded that agency staff were incentivized to remove children from their homes in order to protect themselves from criticism and retribution from ACS leadership.

In their FOIL request, the Bronx Defenders asked ACS to provide information about agency leadership's response to the audit and whether it had moved forward with implementing any of the report's many recommendations. But after months of appeals, ACS declined to provide this information, the complaint says.

"If the impact of trying to bring to light the documents in that foil lawsuit causes [ACS] to change in a positive way, that's one of our desired results," Schissel told Law360. "We're trying to get ACS to rid itself of the bias and discrimination that we alleged in the complaint, so that's one of the ultimate goals here. Sometimes when you shine a light on a problem, the problem seems to get fixed."

The Bronx Defenders claim that the agency has not made any changes based on the audit and is hiding how its leadership responded to the feedback.

"For years, ACS has paid lip service to recognizing and addressing its own racial bias, choosing instead to evade calls for transparency and reform, which has caused lasting harm to the family sanctity and bonds of generations of New Yorkers," Niji Jain, a senior staff attorney at The Bronx Defenders, said in a statement.

While aiming to bring more information about the agency to light with one suit, Arnold & Porter is helping Rivers pursue justice with the other. Rivers is seeking damages from the agency for allegedly violating her human rights and causing her, her family and her business unnecessary hardship.

Rivers had experienced "a peaceful pregnancy," the complaint says, "she had been meditating, connecting with her spirituality, and enjoying the sunshine. She was excited for her baby to arrive."

But hospital employees, according to ACS records referenced in the complaint, were concerned Rivers was smoking marijuana in her hospital room after giving birth. Although the complaint says the hospital cited no medical purpose for the test, Rivers was drug-tested against her will, and was denied the chance to take her baby home with her.

"When ACS took my baby away from me, I felt lost, empty, and hopeless," Rivers said in a statement. "ACS has been ripping Black families apart for generations, and I'm bringing this case to let Black parents know they have rights to stand up to ACS."

Rivers didn't regain custody of her son until a family court judge released him to her on Sept. 3, more than five days after she had given birth. 

Still, ACS pressed on with the case against Rivers for months, according to the complaint, which said she was subject to "intrusive government surveillance of her parenting."

The complaint asserts all the interference was based on Rivers' use of marijuana, though the petition also cited her previous run-ins with ACS more than five years prior, when she was found to be neglectful of her two older children based on allegations of misuse of drugs and alcohol and failure to obtain medical care for her older son.

"In reality, ACS knew that these outdated findings were no longer a concern," the complaint says. "Defendants' petition did not allege any evidence of current alcohol use by Ms. Rivers. The hospital never tested Ms. Rivers or (her baby) for alcohol, despite testing for other substances. Nor did Ms. Rivers test positive for alcohol at any time during her pregnancy."

After she was reunited with her son, ACS refused to drop its neglect charges in court. Rivers was required to appear in person for several hearings up until the petition was dropped in December 2021. And in between, ACS staff made repeated unannounced visits to her home, including middle-of-the-night visits. They also didn't wear masks or show her proof of vaccination upon entering her house, the complaint says.

"These lawsuits against ACS illustrate how the agency systematically polices marginalized families and tears them apart based on harmful, racist stereotypes about Black parents and families, laying bare the endemic racism and discrimination that lies at the heart of the agency," Jain said.

The Bronx Defenders are represented in-house by Kshithij Shrinath, Anne Venhuizen and Niji Jain and by Michael Schissel, Melissa Wen and Srinivas Ayyagari of Arnold & Porter Kaye Scholer LLP.

Rivers is represented by Michael D. Schissel and Lucy McMillan of Arnold & Porter Kaye Scholer LLP and Niji Jain and Anne Venhuizen of The Bronx Defenders.

Counsel information for ACS and the state of New York was not immediately available.

The cases are The Bronx Defenders v. ACS, case number unassigned, in the Supreme Court of the State of New York County of New York; and Rivers v. City of New York, case number 1:23-cv-04084, in the U.S. District Court for the Southern District of New York.

--Editing by Marygrace Anderson.

Update: This story has been updated with comment from ACS and Arnold & Porter attorney Michael Schissel.