New York City family courts have narrowed its drug testing policy following a federal lawsuit by the Bronx Defenders arguing that the original program is unconstitutional.
The revised policy, which took effect Nov. 2, would bar judges from ordering drug testing without probable cause and limit testing to cases that involve substance abuse disorders. Judges also cannot ask parents to consent to drug testing or penalize them for refusing.
The Bronx Defenders filed the lawsuit in federal court in June to halt the revival of a pre-pandemic drug testing program. The organization argued that the policy gave Family Court judges broad discretion to ask parents to undergo drug testing and that parents could face risk their case for refusing.
One parent who testified anonymously described feeling pressured to comply with testing during Family Court appearances.
“I felt humiliated when the Judge asked me to drug test during court appearances. I felt as though I was being labelled as an alcohol abuser in front of people I know. I felt stigmatized in open court,” the client testified.
“I also did not feel as though I had a real option not to test. I took the drug tests because I did not want the family court to assume that I was doing anything wrong. I knew that refusing to take the tests would harm my case,” the client added.
The Bronx Defenders argued that the program violated parents’ first and fourth Amendment rights, including their right to access the courts and their protection against unreasonable searches.
Attorneys reported that parents ordered to undergo drug testing were escorted by an officer and could wait up to an hour to provide a urine sample. Clients also reported that they were required to provide samples with the door open and visible to other court staff, which they described as feeling “humiliated.”
“A judge’s “request” for courthouse drug testing is functionally a demand,” said Keith Baumann, legal director in the family defense practice of The Bronx Defenders. “In my experience, judges explicitly threaten to draw an inference that the test would be positive if a parent refuses to consent or does not provide a sample.”
“In my experience, if a parent refuses to test or does not provide a sample, the judge urges the parent to withdraw or delay their applications or denies the parent’s application on the basis of their refusal or lack of sample,” Baumann said.
The Bronx Defenders later voluntarily dismissed the lawsuit after the court committed in federal court to making changes to the program.
The revised policy also prohibits officers from guarding parents while they provide urine samples and bars judges from announcing test results in front of people who are not involved in the case.
“For years, judges removed children from their homes if their parents would not agree to an arbitrary, demeaning drug test. No test is ‘voluntary’ when illegal child removal hangs on the answer,” said Trisha Trigilio, director of impact litigation at the Bronx Defenders.
“Now, the court’s policy reflects what the Constitution has always required: no testing without probable cause and no punishment for saying no,” Trigilio said.
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