The mere existence of a fracture, head trauma, or other serious injury in a young child or infant that cannot be explained, even without additional evidence of an intentional act, can trigger civil child abuse allegations, tear apart a family, and stigmatize a parent as an “abuser.” This article explores litigation strategies within serious physical abuse cases, the proportionally smaller category of child protective cases in which ACS is often seen to be most justified in removing and separating children from their families. Though these cases often seem daunting, effective litigation exposes that even unexplained serious injuries are often not caused by abuse, and that the prosecution of physical abuse cases fall prey to overreach, misinformation, and racial disproportionality. This article shares strategies that can be used to win cases, reunify families more quickly, and expose the fallacy that a young child’s “unexplained” injury in some communities is necessarily abusive. In the authors’ experience in The Bronx Defenders Family Defense Practice, employing aggressive and early litigation in abuse cases, in conjunction with holistic client advocacy support by parent advocates and social workers, has led to quicker family reunification and better case outcomes.
The authors thank our clients for the willingness to share their stories in this public format. The authors also thank Erin Cloud, Chris Gottlieb, Emma Ketteringham, Ilana Perlman, and Rebecca Widom for providing important edits and insights. Thanks to Emma Alpert from Brooklyn Defender Services, a pioneering expert in defending parents in abuse cases, and an important partner in strategizing to reunify families. We have benefited greatly from the community of defenders’ offices in New York City, especially our colleagues at Brooklyn Defender Services. In addition, we would like to thank the doctors who assist us on abuse cases, many who donate countless hours of their time to help us understand complex medical evidence. Finally, we thank the tireless staff of the CUNY Law Review.
Jessica Horan-Block & Elizabeth Tuttle Newman, Accidents Happen: Exposing Fallacies in Child Protection Abuse Cases and Reuniting Families Through Aggressive Litigation, 22 CUNY L. Rev. 382 (2019).