Protecting The Rights Of Families And Children In NYC
A child protective (CP) case in New York is filed by the Administration for Children Services (ACS). Once someone makes a report to the confidential child abuse hotline through the Central Bureau of Child Abuse and Neglect, ACS will launch an investigation into the allegations.
If ACS cannot confirm the allegations, then they will close the case file; if they confirm the allegations, then they will request that the offending parent cooperate with ACS home visits, drug testing, classes, or other requirements. If the case is too serious for this course of action, then ACS will file an abuse or neglect petition in Family Court. ACS may ask for a remand of the children, which means they will try to remove the children from the parent(s) accused of neglect. Alternatively, ACS will consent to the children remaining with the parents under certain conditions.
When I am retained on a private CP case, I generally represent one of the parents or the persons legally responsible for the children (it could be a nonparent, boyfriend, girlfriend, relative, or anyone else who is accused of neglect). If parents prove that they are financially eligible, I may be assigned to represent them in Family Court. In some cases, I will be assigned as an attorney for the child.
Common CP Cases
The most common allegations which prompt a CP case or ACS investigation have to do with drugs, including anything from prescription drugs to alcohol. In some cases, a parent is accused of being under the influence while caring for their child, or driving under the influence with their child in the car. In other cases, a child will test positive for drugs or alcohol at birth. In these and similar situations, ACS will file a case against the parents, and if the issue is serious enough, seek to remove the child from the parents.
Excessive corporal punishment is a common reason for the initiation of an ACS investigation or CP case. While it is legal to use corporal punishment or physical punishment against a child in New York, it is not legal to use excessive corporal punishment, often evidenced by the use of a weapon (e.g., belt) and marks left on the child.
Another common reason for a CP case is abandonment, which is said to occur when a child of insufficient age is left alone for a period of time in a house or vehicle. If ACS finds an abandonment issue, they will often remove the child from the house.
Other bases for CP cases include poor or inadequate living conditions (e.g., a very dirty house), medical neglect whereby the parent is failing to meet the child’s medical or psychiatric needs, and educational neglect marked by excessive absence from school.
The Process Of An ACS Investigation
ACS will launch an investigation into any allegation of child abuse or neglect. If ACS substantiates the allegation, then they will put in services or supervision over the family; if the case is more serious in nature, then they will file a case in the Family Court.
These cases can follow one of two paths. The first possibility is that ACS will decide not to remove the child from the home, but will impose safeguards (e.g., drug testing, home visits, an order of protection prohibiting the parents from certain actions). The second possibility is that ACS will decide to remove the child from the home, either by exercising their emergency power to do so, or by asking the court to approve removal of the child.
The parent has the right to request a hearing in front of a Family Court judge to prevent a removal or to request the return of a child who has already been removed. At that hearing, the ACS must prove that there’s imminent risk to the life, health, or safety of the child, while the parent—through their attorney, typically—would need to show that there is no imminent risk to the life, health, or safety of the child. This hearing is considered an emergency hearing, which means it must be held on the day that ACS plans to remove the child, or if the child has already been removed, then within three days of that removal.
After the hearing, the judge will determine whether they believe ACS has met their burden of proving imminent risk to the child. If they find that that the ACS has proven that, then the judge will authorize ACS to remove the child; if they find that the ACS has failed to meet their burden of proof, then they will prevent the removal of the child, or have the child returned to the parent.
Typically, a case will be adjourned for settlement conferences, where the ACS will have to turn over all their evidence to the attorneys for the parents. The attorney for the child (who, in most cases, is from the Legal Aid Society) will meet with the child, and depending on their age, advocate for what the child wants, or for what they believe is in the best interest of the child.
The process might involve several court appearances. At some point, the case may be resolved through a negotiated settlement between the parents’ attorneys, the ACS attorney, and the attorney for the child; alternatively, there will be a trial.
If a case goes to trial, the first stage would be the fact-finding stage, where the ACS would have to prove by “a preponderance of the evidence” that neglect or abuse has been committed by the parent or person who is legally responsible for the child. The “preponderance of the evidence” standard is not as difficult to meet as the “beyond a reasonable doubt” standard, since all that must be shown is that there is more evidence to support one side of the argument as opposed to the other.
If ACS proves their case, then disposition will follow, which is when the judge decides what will happen with the child and parents. The judge may decide to remove or maintain ACS custody of the child, which would typically mean that the child would remain in or be placed in foster care or a family member’s home. Alternatively, the judge may order ACS supervision for a period of time, during which the child would stay with the parents, but the parents would have to comply with certain services (e.g., parenting classes, drug treatment). If the parents comply for a certain period of time, then the supervision would end and the ACS case would be closed.
If the child is placed in foster care, there must be a permanency hearing held every six months. At this hearing, the court will monitor the situation with the parents and the child, and check to see whether the parents are visiting their child, cooperating with the ACS, and otherwise working toward regaining custody of their child.
If the child is not returned to the parents in a timely manner, which is usually determined by the child being in foster care for 15 out of 22 months, then the foster care agency may be required to start a termination of parental rights case. If parental rights are terminated, it is typically because it is alleged that the parents have failed to cooperate with the services and do what is necessary to regain custody of their child. Once parental rights have been terminated, the child could be adopted.
Outcome Of Abuse And Neglect Cases
In the best case scenario, a child neglect or abuse case will get dismissed. Typically, this would only happen after a trial. If the ACS cannot prove a case or if the parent has improved to the point that the ACS does not feel court intervention is necessary, then the ACS may choose to withdraw their case (this does not happen often).
Most abuse and neglect cases end up getting resolved by what’s called a 1051A, which is a section of the New York Family Court Act. Through this type of resolution, the party will consent to a finding of neglect against them without admitting that they did anything wrong. Alternatively, the case could be resolved by an adjournment contemplating dismissal (ACD), which is when there is no finding of neglect against the parent and the case is typically held in abeyance for anywhere from a couple of months to a year. If the parent does everything they’re supposed to do, then the case will be dismissed and sealed.
If a neglect or abuse case goes to trial and the parent loses, or if they consent to a finding of neglect or abuse, then the child could be placed in foster care. At that point, it would be very important for the parent to cooperate with the services in order to have their child returned to them. This might mean completing drug treatment, taking drug tests, visiting regularly with the child, and having adequate housing and income to care for the child.
It can be very difficult for a person to accomplish all of this on their own, which is why it is best to hire a lawyer. Low-income individuals may be able to have an attorney appointed to them. It is very important for parents to have someone who is familiar with the Family Court and child protective cases, and who can advocate for them during negotiations, hearings, and trials.
For more information on Child Protective Cases In The State Of New York, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 557-9767 today.