Legislative Memo: RRP Opposes “Monitored Birth” Bill Because It Is Overbroad, Violates Due Process (2005)

The so-called “Monitored Birth” Bill (S.3370), submitted by Senator Spano, would require the Office of Children and Family Services to notify all local hospitals anytime a person who had been adjudicated to have abused a child or resides with someone who has been so adjudicated and who is pregnant that the birth is to be “monitored.” Briefly, we have identified three areas of concern about this bill: (1) the bill is overbroad; (2) the bill does not consider any concept of rehabilitation; and (3) the bill affords no due process to person subjected to “monitored birth” classification.

1. Overbreadth

This bill is overbroad in its sweep and could cover innocent persons, such as victims of domestic violence. New York Courts have barred such overbroad neglect classifications in the family law context as detrimental to children. For example, New York’s highest court noted that the City’s policy of removing children from women who were victims of domestic violence was “‘in effect visiting upon them the sins of their mother’s batterer.'” Nicholson v. Scoppetta, 3 N.Y.3d 357, 366 (2004) (quoting In re Nicholson, 181 F.Supp.2d 182, 188 (EDNY 2002).

The Court of Appeals held that “plainly, more is required for a showing of neglect under New York law than the fact that a child was exposed to domestic abuse against the caretaker.” Id. at 368. Notwithstanding the Court of Appeals’ disapproval of this practice, this bill would subject domestic violence victims to the “monitored births” classification.

2. Ignores the concept of rehabilitation

This bill is also problematic in that it fails to take into account the concept of rehabilitation. For example, a parent who once may have been previously adjudicated to have abused or neglected his or her child on the basis that he or she had an alcohol or substance addiction, but has successfully completed recovery would be subjected to the policy in perpetuity, despite being in recovery for years, possibly decades. Rehabilitation is a core principle of the American jurisprudence system which should not be ignored. This bill does just that.

3. Due process concerns

Finally, the policy is replete with due process problems and is unlikely to survive a legal challenge. Due process problems include the following:

• The bill fails to identify what exactly it means to be a person subject to a “monitored birth” classification. What would a hospital do with the patient classified with “monitored birth” status? What would the local family services agency do with a person assigned “monitored birth” status?
• The bill fails to afford notice to the person who will be subjected to a “monitored birth” classification. Courts have long held that due process mandates that individuals receive individualized notice of government action. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
• The bill fails to provide the person subjected to the “monitored birth” classification an opportunity to appeal such classification on the grounds that: the local family services agency made a mistake; the parent has good cause to contest the classification; and so forth. As the Supreme Court has held, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'” Id. This bill provides neither.

Status of this legislation: This was bill was introduced and referred to committee in the Senate, where the bill was stalled. The bill did not pass during the 2005 legislative session.