Long Island Family Law and Mediation Blog
CPS ( Child Protective Services ), ACS ( Administration for Children’s Services ), and Judges in New York make determinations to indicate or found cases regarding neglect andabuse of children in New York or whether these determinations should stand. But, when these findings are challenged, when should an emotional neglect finding stand or not? In the State of New York, the law dictates that emotional abuse, including neglect, can be defined by the omissions or acts made by caretakers or parents that result in serious changes to a child’s conduct, cognitive, mental, or behavioral functions. Parents have a responsibility to support the proper physical and emotional development of their children – failure to offer that support, either deliberately or passively, can be a sign of neglect. Under section 1012(f) of the Family Court Act, a maltreated or neglected child is an individual under the age of eighteen who has had their physical, emotional, or mental condition impaired as a result of his or her parents, or caretaker’s action or inaction. The minimum degree of care expected from parents or caretakers according to the New York law, includes:
- Supplying the child with adequate education, shelter, clothing, and food.
- Providing medical, optometric, dental, or surgical care.
- Giving the child proper guardianship or supervision to reasonably prevent potential harm and risk when possible.
One example case drew attention to proof provided for the injuries that a child sustained as a result of neglect. The case determined not only that the condition of the child was legitimate, but also that it could not have occurred within a typical five-year-old, without the presence of neglectful behavior from the parent. In this particular case, the respondent mother was the primary caretaker of a five-year-old who consistently exhibited troubled behavior, an obscene vocabulary, and an obsession with deviant and explicit sexual conduct. Regardless of whether the respondent in question tutored her son towards this behavior, or allowed the traits to take place in an environment wherein she should have been exercising control, the case of neglect was made.
Alternatively, mere speculation on the source of the emotional or mental impairment present in a child is not enough for a decision or a founded CPS finding of emotional neglect to stand in New York when challenged. Rather, the presenting attorneys involved must be able to show a causal connection between an omission or act by a parent and actual impairment or imminent/substantial risk of the impairment. Wherein harm alleged relates to the impairment, or a risk of impairment to the child’s mental or emotional condition, the proof must show a connection between the behavior of the parent and the child’s conditions. The burden of evidence lies with the department of social services, who must prove the allegations of the petition in question through a preponderance of the evidence. This means they need to show that the allegations are more probably true than not or that there is a greater than fifty percent likelihood of their allegations.
However, the available statute suggests that a conclusion of neglect may be reasonable wherein the condition of the child indicates a level of emotional or mental impairment that would not exist without the presence of parental neglect. The statute draws attention to both a “condition” or “injuries sustained” that could not exist under typical circumstances.
Because the New York court cannot hold a parent accountable for the condition of a child on the basis of mere speculation, a causal relationship must be established using two specific prongs: actual or imminent danger, and the failure to exercise the minimum expected degree of care. The requirement set in place by the legislature prevents the state from intruding within the private life of families when there is an absence of serious or potential harm to the child. Importantly, any imminent danger indicated must be deemed impending, rather than just potentially possible.
In one case, the petitioner presented proof of two incidents to the court that may have indicated risk to the children involved. The first case showed that the respondent had taken part in a verbal argument with her 13-year-old daughter, and had loudly begun cursing and explaining the situation to neighbors in the street. Eventually, the police attempted to arrest this respondent, and she resisted, beginning to curse at the police, leading to a conviction of disorderly conduct and harassment. In this case, the elder two children of the four in question were present for a portion of the incident. However, though the respondent’s behavior was inappropriate in this instance, the record showed no indication that the present children were harmed or in danger of harm as a result of witnessing that behavior. Similarly, the record did not show that the first prong was established, and that the three younger children were in imminent data of impairment when the respondent chose to leave them alone overnight. While a police officer testified that the children were upset when he arrived at the house, the testimony was too vague to establish an impairment of emotional or mental condition.
Importantly, even if the testimony had been enough to show impairment, it was unclear whether the children were upset due to the respondent’s actions of leaving them alone. However, leaving young children alone overnight is not a behavior that can be condoned by the court, and therefore satisfies the second prong of neglect, suggesting that the respondent was unable to exercise the minimum degree of care. Despite this, however, a single incident was not enough to show neglect without proof of imminent danger of impairment to the children. The petition was therefore dismissed on account of the petitioner’s failure to provide significant evidence.
Even instances of domestic violence within the presence of children should be deemed so severe or repetitive that it results in an imminent risk of danger in regards to mental or emotional impairment on the behalf of the children involved. In the case mentioned above, while the children lived under strict household rules, the punishments they received were reasonable enough, and did not have an impact on the children’s school attendance or performance. While domestic violence is a permissible basis on which to make a finding of neglect, these findings are generally made in cases when that violence is so repetitive or severe that it could imminently damage the emotional, physical or mental health of the child.
If you would like to learn more about the issue of neglect and child abuse in New York family court cases, please continue to browse through our online pages. Alternatively, you might find it helpful to speak to a compassionate and educated New York attorney such as Mr. Darren M. Shapiro, Esq. the author of this article. You can contact our office via the online form, or over the phone at: 516-333-6555.