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On September 7, 2004, an appeal was placed before the Second Circuit of the United States Court of Appeals

On September 7, 2004, an appeal was placed before the Second Circuit of the United States Court of Appeals. It was an appeal on behalf of all mothers who had suffered domestic violence and who were separated from their children because their kids had witnessed the violence. What brought this about?

On April 2000, a mother sued the New York City Administration for Children’s Services (ACS). Not soon after, three other mothers also filed their complaints. When the charges were investigated, it was discovered that ACS had a policy of taking children away from their mothers and homes if the mothers were victims of domestic violence. It was alleged that the mothers were “engaged in the abuse” because they were victims of it. The mothers protested that this was against their rights and that it violated the constitution.

As the trial progressed, the Court soon discovered that ACS guilty of the charge. Reports showed that the ACS had unnecessarily charged mothers who were victims of domestic violence and whose children had witnessed this abuse, of neglecting their children. This was because they had not prevented the children from witnessing the abuse. The agency had then taken the children away without even considering other less harmful alternatives. It did not offer the mothers services that could help them, but instead took the children away without a court order. Furthermore, it did not always return the children to their mothers, even when ordered to by the court.

Further research shows that ACS policies are not clear on what should be done in situations involving domestic violence. According to a lawyer specializing in domestic violence, the advice it gives on this matter is either useless or contradictory and confusing. Also, none of the reform plans that the agency gave out could reasonably solve the problem within the year.

The Court found that in some situations, the actions of ACS could be questioned as violating the Constitution. However, it decided that before going into this matter, it would better to clarify first what New York laws say on the issue. Therefore, in reviewing this case, the Court discussed three questions focusing on New York’s child protection laws. 1) The meaning of neglect in law, 2) The ways by which a child could be removed from his/her home and 3) The process of determining whether a child should be removed from his/her home.

What does neglect mean in law? Does it include situations where a child’s parent or legal guardian allows the child to witness abuse against him/her? In child protection laws, a child is considered to be neglected when he/she is physically, mentally, or emotionally harmed, or exposed to imminent harm, because his/her parent or legal guardian did not exert the minimum degree of care required.

According to the Court, an analysis of the law shows that the people who wrote it were “deeply concerned” about how a misinterpretation of neglect could cause “unwarranted state intervention into private family life”. They were worried that a misinterpretation would cause the State to Neglect was specifically limited to acts that harmed or would inevitably harm the child, and not just for acts that are considered to be undesirable behavior.

Furthermore, to be considered neglect, the harm should have been caused by the parent or guardian’s lack of exercising a minimum degree of care. This could be either because he/she does not want to or is not able to. The minimum degree of care, according to Family Law, is the most basic care that a parent or guardian should give to his/her children, regardless of his/her economic and social position. To determine this, the court should look objectively at the situation and ask, would a reasonable person or parent act the same way in the same situation?

Given this definition, it does not necessarily follow that because the children had witnessed the abuse, their mothers were guilty of neglect. Although there are also situations where the opposite is true, in this case, the Court decided that the mothers were not guilty of neglecting their children.

Now, let’s move on to the second question. When should a child be removed from home? Can the harm or imminent harm that comes from witnessing the abuse be enough to considered dangerous to the child’s health and justify taking him away from home? The defense argued that allowing a child to witness domestic violence is neglectful and has shown in some circumstances, to negatively affect the child’s health.

The Court agrees with this. Domestic violence affects children even though they are not the direct victims of the abuse. However, New York has always embraced policies that bring biological families closer together. Removing children from their homes can have a negative impact. Since not all children who witness domestic violence can be said to be neglected, it is up to the Court to decide whether or not the emotional harm that the children will experience as a witness to the violence is enough to risk the trauma they will experience when they are taken from their home.

In cases where the best option is to take the children away from their home, it should be done either with the parent or legal guardian’s consent, by court order after a child neglect petition, and lastly, if a petition has been filed but there is not enough time to complete it because the risk to the child’s health is very high.

The third question is about process. If the child witnesses abuse does it automatically mean that he/she should be removed from his/her home? Should removal only be done in the child’s best inerests? Or should the child protective agency give specific evidence to justify that the child should be removed from his/her home?

There is no one answer to this question. According to a lawyer specializing in Family Law, different situations call for different solutions. All factors have to be considered. The situation has to be studied carefully in order to find out whether witnessing abuse means neglect. Expert testimony cannot be used in all situations. Older children can express themselves better and may talk with psychology experts about what happened but it can be harder for younger children. They are more vulnerable and suffer more. Also, without expert testimony, how can a court prove that the parent was unable or unwilling to provide the minimum degree of care required? However, the law does not specifically require such testimony.

On October 26, 2004, the Court of Appeals moved to approve the mother’s appeal. Furthermore, it asks that the answers to the three questions that were discussed be studied and used as the basis for future questions relating to the topic.

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