Publication Date

Winter 2019


Americans across the political spectrum protested in response to the United States government’s family separation policy at the U.S.-Mexico border in 2018. The everyday family separations that occur in the U.S. child welfare system go unnoticed by many, however. This Note examines the lack of due process, the injustice, and the trauma caused by the child welfare system, focusing specifically on the common practice of removing children from their parents while home on “trial discharge,” when families reunite after children were in foster care. After reviewing the harm caused when children are removed from their parents, this Note explains the basic path of a child neglect or abuse case in New York State. Then, this Note examines trial discharges and removals of children who are home on trial discharge. After this overview, this Note asserts that parents are entitled to a hearing whenever the government removes their children from their care, even when their children are home on trial discharge. The U.S. Constitution and New York State policy require an expedited hearing, based on imminent risk, whenever the government removes children on trial discharge.


Ms. Jennings thanks Erin Cloud, Esq., Professor Chris Gottlieb, Amy Mulzer, Esq., Emma Ketteringham, Esq., Mary Anne Mendenhall, Esq., Keith Baumann, Esq., David Shalleck-Klein, Esq., Caitlin Becker, MSW, Noemi Cotto, MSW, and Professor Kara Wallis for their encouragement and indispensable feedback; the CUNY Law Review editors and staff for their commitment to this Note; and the many friends and family who provided thoughtful comments throughout the drafting process. This Note is dedicated to the families who fight for their children every day, unnoticed, and their enduring resilience in the face of incredible opposition.

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