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Family Court Updates
Parents and Attorneys Challenge Family Policing Agencies’ Reliance on Emergency Child Removals
A federal lawsuit filed by Queens mother Meredith Trainor alleges that the Administration for Children’s Services (ACS) violated state law and federal civil rights law by conducting an emergency removal of Trainor’s breastfeeding toddler without identifying imminent safety concerns, an act that was reversed by a family court judge five days later. The lawsuit alleges that ACS exploits the emergency removal system by pressuring case workers to remove children in situations that do not pose actual emergencies. This problem is not unique to New York. Recent analysis by The Imprint reveals that in some states, emergency removals account for nearly all entries into foster care—86% in Illinois, 96% in Washington, and 100% in Texas. Two lawsuits pending before the Georgia Supreme Court challenge that state’s widespread practice of emergency removals.
NYC data shows that in 2025 alone, 1,368 children were removed from their parents via emergency removals, with around 20% released to a parent after a court hearing. Emergency removals in NYC are also racially disproportionate. Indicated investigations of white parents result in emergency removals at half the rate of Black parents, with only roughly 5% of all emergency removals impacting white parents. Agencies outside of New York City, unfortunately, do not track emergency removal rates. A 2022 addition to the family court rules governing eligibility for counsel will hopefully reduce the number of emergency removals across New York. The rule provides that counsel shall be provided to financially eligible parents during a family policing investigation, even before a petition is filed in court. NYSDA welcomes information, questions, and concerns from attorneys on parents’ access to counsel during CPS investigations in their counties.
Parent’s Lapse in Mental Health Treatment and Request for Help Is Not Imminent Risk
In Matter of Ja.W., 2026 NY Slip Op 01623 (1st Dept 3/19/2026), the First Department vacated a finding of neglect based on the respondent’s mental illness. The family court “erroneously found that the mother ‘admitted that she was not compliant with the recommended treatment.’” The respondent testified that she was diagnosed with anxiety and depression, was under the care of a psychiatrist, and discontinued one medication in accordance with the doctor’s instructions and stopped seeing her talk therapist because she didn’t think they were a good fit. The First Department pointed out that the petitioner introduced no evidence that consistent therapy was required to treat the respondent’s mental health issues. It was also not imminent risk for the respondent to call ACS to say she was “feeling overwhelmed with caring for her three children and was unwilling or unable to care for and supervise them any longer,” as she testified this was a request for respite care that had been offered to her in the past.
This case, and another recent case in which findings of neglect related to mental health issues were overturned, is a reminder to defenders that they must advocate for the court to hold petitioners to their burden in showing that a parent’s mental health condition resulted in imminent danger to the child. Challenging facts involving imperfect engagement in mental health services, parental expressions of distress, or allegations of strange parental behavior do not preclude a successful defense or appeal in mental health cases.
Forensic Highlights
AI-Generated Evidence Including Deepfakes Creates New Challenges
The increasing prevalence of AI-generated evidence and “deepfakes,” along with growing public awareness of them, is creating new challenges for defenders. As the Forbes article “Deepfakes Could Break Overworked, Underfunded Public Defenders” explains, highly realistic synthetic media is becoming increasingly difficult to detect, and authenticating digital evidence often requires costly forensic analysis. Those costs fall most heavily on defendants, particularly public defenders who often lack the resources to retain experts, while the prosecution benefits from systems with built-in authentication and institutional support. The result is a widening disparity in which the ability to admit or challenge digital evidence will increasingly depend on financial resources. As courts encounter these issues more frequently, both judges and litigants will require greater technical literacy and, in many cases, expert assistance to properly evaluate digital evidence. This problem is underscored by Matter of M.S. (2026 NY Slip Op 00825), where the Court of Appeals reversed based on insufficient authentication of video evidence, noting that “the increasing prevalence of ‘deepfake’ videos has … rendered [traditional] methods of authentication more suspect.” See the March 25 issue of News Picks from NYSDA Staff for more coverage of that case.
Accountability in Adopting AI
Acknowledging the pervasiveness and utility of artificial intelligence, the Vera Institute of Justice recently issued a report, “Accountability Principles for Adopting Artificial Intelligence Within the Criminal Justice and Immigration Systems,” outlining five principles for thoughtful usage. The Five Principles they enumerated are:
1. Only engage AI systems that shrink the footprint of mass incarceration and reduce criminalization.
2. Define clear objectives before adopting AI systems and explore whether those objectives can be achieved with fewer risks by using alternative tools.
3. Ensure that all uses of AI include rigorous human oversight, standards, and checks.
4. Center community-defined priorities for public safety as the basis for any AI adoption.
5. Disclose the use of AI and related data protection measures to the public.
For more guidance on whether and how to incorporate AI in your workplace, see our "Artificial Intelligence Starter Guide."
Legislation Proposes Task Force on Facial Recognition Technology
The “Facial Recognition Technology Study Act,” which recently passed the Senate and is presently in the Assembly Governmental Operations Committee, signals a recognition that New York is at a crossroads where the changing tech-privacy climate meets the necessity to act responsibly. The bill (S.3699/A.8788) proposes a task force to study “potential privacy concerns” that imposing facial recognition technology (FRT) would present to the public and to individuals. The taskforce, comprised of appointees by the Governor, by the Temporary President of the Senate, and by the Speaker of the Assembly, would examine the law, regulations, and FRT use cases in other jurisdictions along with the potential for misuse, and abuse of FRT. Full text, justification, and action on the bill can be found here. According to Biometric Update, the proposed legislation is a “cautious middle path” that would inform a framework for regulation.
Immigration News For Defenders
WNYRIAC Newsletters Contain Updated Immigration Information for Defenders
The April issue of the Western New York Regional Immigration Center (WNYRIAC) is available here. The lead item is “The Consequences of Immigration Detainers and Challenges to Their Use.” It provides “[a]n overview of DHS [Department of Homeland Security] detainer practices, constitutional challenges, and what defense counsel need to know to protect clients and avoid unintended consequences.” The administrative documents in question, usually lodged by Immigration and Customs Enforcement (ICE), now sometimes reflect action by Customs and Border Patrol (CBP). The article reminds readers that honoring such detainer requests from DHS is voluntary; local law enforcement can decide whether to act. Further, it notes that the NYS Attorney General has pointed out “[a]rrests and detention by state or local law enforcement agencies in reliance on an administrative arrest warrant or detainer alone are invalid ….” The WNYRIAC article includes a list of practice pointers for defense counsel.
Family defenders will want to note the newsletter’s coverage of DHS’s efforts to use the Federal Parent Locator Service in immigration enforcement. At the time the item was written, the Federal Health and Human Services Department (HHS), which maintains the database in question, was still considering DHS’s request.
The March issue of the WNYRIAC newsletter provided a look at “Criminal Activity and Protection from Persecution,” including how “criminal convictions can bar or terminate refugee and asylee status” and “key misconceptions and recent case law affecting removal and adjustment to permanent residence.” This article was an update of information provided in prior years.
Other updates include a “Harboring Statute Update and Caution for Counsel,” reminding defense attorneys to “exercise caution if noncitizen clients are confronted by ICE in your presence.” This is not an easy effort; in the words of one quoted commentator, “a broad definition of harboring –– one that criminalizes giving accurate legal advice, issuing appropriate cautions, or even worse, criminalizes the failure to affirmatively turn clients in or advance a client’s interests in good faith –– threatens to undermine the foundations of a good, effective, and constitutional lawyer client relationship.” Other topics addressed include developments regarding birthright citizenship and a New York Legal Assistance Group “project to draft stand-by guardianships for immigrant parents who are worried that they may be separated from their child because of an immigration action ….”
NYSDA thanks WNYRIAC for all that it does to assist criminal and family defenders with clients who are not U.S. citizens.
ICE’s NYC Office Overwhelmingly Detaining People with No Convictions or Final Removal Orders
NY1 reported on new data from U.S. Immigration and Customs Enforcement's New York City division that only 7% of people detained have aggravated felony or multiple felony convictions. 63% of people detained had no criminal conviction or pending case at all, and only 26% of them had final removal orders. These statistics show why every non-citizen client must be referred to an immigration attorney, regardless of the severity of the instant case or their criminal record.
The data was obtained by the Deportation Data Project, which uses the Freedom of Information Act to gather datasets from the government. Gothamist similarly used their data for this report about how ICE’s NYC division is arresting more people but deporting fewer.
Featured Hightlights
Out of the Closet, In on Bail
In their recently published article for the Harvard Civil Rights-Civil Liberties Law Review, Out of the Closet, In on Bail, professor Deborah Lolai, provides a detailed examination of the discrimination faced by the LGBTQGNCNBI (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Gender Non-Confirming, Non-Binary, Intersex) community in the bail and pretrial detention practices of 52 jurisdictions, including the 50 states, D.C., and Federal courts. Professor Lolai’s extensive research on the bail laws in each of these jurisdictions is conducted through the lens of the story of Layleen Xtravaganza Cubilette-Polanco, a transwoman who died after suffering an epileptic seizure in solitary confinement while detained on $500 bail at Rikers Island in New York City in 2019.
Professor Lolai’s analysis begins with enumerating the most common statutory factors that judges around the country consider when deciding whether to release or detain the criminally accused pretrial and provides a factor-by-factor argument for the manner in which these factors disproportionately impact LGBTQGNCNBI people. Some of these factors include family/community ties, residence, employment, criminal history, previous failures to appear in court, mental health and substance use history, and general “catch all” language. Professor Lolai argues that because LGBTQGNCNBI people statistically represent a larger proportion of the unhoused population due to discrimination, are likely to have experienced alienation from their family and community (and perhaps have familial type bonds with their chosen family), and are often forced into a criminalized economy, the consideration of these factors in pretrial detention decisions means that this population is more likely to face incarceration. Lolai further describes how discriminatory policing and a system of coercive plea-bargaining leads to more arrests, increasing the likelihood of LGBTQGNCNBI people having a criminal record. To demonstrate this, Lolai uses the examples of laws like “Loitering for the Purposes of Prostitution” and “False Personation,” and cites an example of Ms. Cubilette-Polanco's pretrial detention on a False Personation charge. In addition, LGBTQGNCNBI people face danger in jail, where they may be incarcerated in facilities based on their sex assigned at birth rather than their gender identity.
Professor Lolai goes on to offer suggestions for how to dismantle or, at the very least, mitigate these discriminatory laws, ranging from the abolition of pretrial detention with supports put in its place, to amending bail statutes to mitigate the harm LGBTQGNCNBI individuals face.
*Professor Lolai will be presenting at NYSDA’s 59th Annual Meeting and Conference in Saratoga Springs July 26 – July 28, 2026.*
Pennsylvania Supreme Court Strikes Down Life Without Parole for Felony Murder
In the case of Commonwealth v Lee, decided on March 26, 2026, the Supreme Court of Pennsylvania struck down automatic sentences to life without parole (LWOP) for felony murder. The Court held that “absent a culpability assessment,” such sentences violate the state’s prohibition on cruel and unusual punishment.
In Mr. Lee’s case, his accomplice shot and killed a man during a home invasion robbery. Mr. Lee was upstairs when the shooting occurred in the basement. It is important to note that, during the commission of the robbery, the surviving eyewitness told police that Mr. Lee was armed and had pistol whipped the decedent before running upstairs, at which time the decedent attempted to wrestle the gun away from Mr. Lee’s accomplice and was shot in the struggle. The same witness identified Mr. Lee as one of the men involved but not the shooter. At trial, Mr. Lee was convicted of felony murder in the second degree, which carried a mandatory sentence of life without the possibility of parole. He was sentenced accordingly.
It remains to be seen whether the ruling will apply retroactively, as the Court was clear that this particular decision applies only to Mr. Lee. However, the Court provided the state legislature with 120 days to enact legislation in line with the decision. Advocates are hopeful that the decision will be applied retroactively without having to bring another case to the Court on the issue.
Felony Murder Law Under Review in New York
The New York Legislature is considering legislation (S.8464-A/A.8929-A) to repeal the state’s felony murder law, Penal Law 125.25(3). According to the Senate Sponsor’s memo, “by repealing felony murder liability and providing for vacatur and resentencing eligibility for those who have previously been convicted and/or charged with felony murder, this bill will reform New York's Penal Law to align with international norms regarding proportional sentencing and reforms being undertaken in other jurisdictions in the United States.” As reported last year by Radio Catskill, “Prisoners’ Brain Trust (PBT), an organization dedicated to ending carceral harm, is working to repeal the felony murder law at the state level.”
The national Felony Murder Reporting Project, which accompanied “Sarah Stillman’s 2023 investigative reporting on felony murder for the New Yorker,” provides data and analysis of felony murder statutes around the United States. Based on the data the Project was able to collect regarding New York’s felony murder statute, “[i]n New York, Black people are 19.1112 times more likely than White people to be incarcerated for felony murder, and Hispanic people are 6.0039 times more likely than white people to be incarcerated for felony murder.”
“I Want a Lawyer, Damn it”
A recent USAToday.com article highlighted the narrow reading of Miranda that too often prevents its application when suppression is sought. “If you don't use the right words, police can continue questioning you and a court might later agree that you failed to invoke your rights … [a]nd judges are being increasingly specific about what those magic words are,” the article notes. A researcher found that attempts to invoke Miranda protection “were deemed too ambiguous or too equivocal in "an overwhelming majority of cases." What can defenders do to alleviate the problem? Proactive education of client communities is ideal, and if advice is sought, that advice should be unequivocal. In the words of a law professor: “I used to tell my students, if you're ever in this situation there's only two answers: 'I want a lawyer' or 'I want a lawyer, damn it.' Anything else is going to be a problem."
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