The Family Miranda Rights bill in New York would give parents much-needed protections from abusive actions by the child protective services industrial complex. Miranda warnings are a mainstay of the US Constitution – their role in offering some protections in criminal law are well documented. Miranda warnings were established in Miranda v. Arizona as a way to warn people that their own words can be used against them in court. The Fifth Amendment provides a right to not engage in self-incrimination. Officers in the course of arrest must provide the following warnings: that they (suspects) have a right to remain silent, anything that they say can and will be used against them in court, they have a right to consult with a lawyer and have a lawyer with them during interrogation, and that if they cannot afford a lawyer, a lawyer will be appointed to represent them. Miranda warnings prevent prosecutors from using evidence against defendants who were not warned.
Child protective services is notorious for infringing rights. If child protective services knocks, parents tend to open doors, not knowing their rights. They do have Fifth Amendment rights! Child protective services initiates warrantless searches about 150 times a day in New York. The organizations can start investigations without establishing probable cause and getting a search warrant, and without clear and convincing evidence. (Kansas is the only state that requires clear and convincing evidence to begin an investigation.) Increasing the burden of proof would be helpful to limit the number of unnecessary intrusions based on unsubstantiated claims. That would also help this predatory system adhere to the constitution. Child protective services generally operates in Family Court, but their investigations can lead to criminal charges against parents and guardianship cases in county, supreme, or surrogate court.
The victims of the child protective services aggressive approach tend to be low income and Black and Hispanic in New York. ProPublica reports that “In New York, a sweeping state law mandates that ACS caseworkers attempt to inspect a child’s home every time they’re forwarded a tip about possible child maltreatment from the state’s central hotline, no matter how serious the allegation is or whether it has anything to do with the condition of the household.” JMAC for Families asserts, “New York family policing agents refuse to inform parents of their rights at the start of an investigation. As a result, Black, Latino, and low-income parents are coerced into complying with traumatizing and harmful investigations – all without being informed of their rights, including the right to speak to an attorney.”
Requiring Miranda warnings is a crucial step. It is not the only step necessary to end the family surveillance industry pervasive in the United States. Even with warnings, some people would likely continue to allow child protective services access to their homes without a lawyer present for fear of appearing hostile or guilty. The warnings are steeped in the Fifth Amendment and the legislation requiring them should be passed.
Child abuse pediatricians deceive patients regularly. They do not tell patients who they are or explain their role in an investigation. They often order excessive radiology, looking for signs of injury. To be ethical, child abuse pediatricians must also give Miranda warnings. In many ways, their ethical obligation is stronger and more pronounced. Deceiving patients is usually impermissible. The bioethics literature debates exceptions like the permissibility of vague, placating language. The literature questions compassionate little white lies, noting varying viewpoints when no physical harm would result and psychological harm may be avoided. Otherwise, truthfulness is fundamental to garnering patient trust and respect. All doctors should be transparent about their role. The Family Miranda Rights Act as written does not specifically include child abuse pediatricians.
Child abuse pediatricians should be held to the same standard as child protective services organizations. Both need to give Miranda warnings and take other steps to end the predatory surveillance state.