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New York Court Rules Against NY Child Services in Child Neglect Case


On June 3, 2010, New York City Child Services filed petitions against two parents pursuant to Article 10 of the Family Court Act. The petitions charged that the father failed to provide a minimum degree of care to their three children because he committed acts of domestic violence against the mother in the presence of the children and the mother failed to ensure that the children attended school regularly. There is also an insinuation in the wording of the procedural history which states that the “petitions alleged that the mother and father failed to provide a minimum degree of care to their three children since the father committed acts of domestic violence against the mother in the presence of the children.” This wording should have been a red flag. Since the New York City Family Court objective is to keep families together if at all possible and not to hold the victims of domestic abuse responsible for the actions of the abuser in the household.

In this case, the New York City Child Services disregarded all of the guidelines established by the New York City Family Court. Upon the initial filing of the petition, the court granted New York City Child Services request for the removal of the children and directed that the maternal grandmother could care for them. It further ordered that a temporary order of protection be issued against the father and that he was to stay away from the children and maternal grandmother except for supervised visitation. Shortly afterward, the grandmother took the children with her to visit relatives in Pennsylvania. It is clear that New York City Child Services knew about the trip, it is not clear if New York City Child Services authorized it. Needless to say, it did not matter; the children were clearly in safe hands. When the maternal grandmother returned to New York City, she only brought the youngest child back with her. The older school aged children were safe and staying with family members. They were enrolled in school and were happy by all accounts.

Upon the grandmother’s return, the mother filed to have the youngest child returned to her. New York City Child Services agreed, but she would have to go into a shelter with him. She agreed. She went to the shelter and waited. On September 8, 2010 the mother learned that the father had followed her from her mother’s house to the shelter and she was no longer safe there. She took the child and left the shelter. Around September 12, 2010 they were allowed to return to PATH (the shelter system) to await a placement in another shelter. It is unclear how long they stayed at the temporary location awaiting placement before they left to stay with a maternal aunt. Several days later, the mother was informed that because she did not sign-in for a period of 48 hours, she was no longer welcome in the PATH program. She also missed one therapy session with New York City Child Services. According to the court records, New York City Child Services made few efforts to locate the mother and child. They did not even try to call known family members.

This mother and her children had been repeatedly forced to move because of this father’s actions. He had violated the temporary order of protection; nothing was done to him. She was forced to leave the shelter she had been safely living in. New York City Child Services took no action against him. Instead, New York City Child Services thought that it was using good judgment by issuing an arrest warrant for the mother and taking all of the children back into New York City Child Services foster care with strangers. This is the second time that New York City Child Services had removed this mother’s children without a court order. The mother requested a hearing combining the custody hearings of all three children. New York City Child Services called one witness, their caseworker.

The New York City Child Services caseworker testified “that the continued removal of all three children was necessary in order to protect them from an imminent risk of harm to their lives and health. She asserted that the mother’s circumstances had changed substantially since August 20, 2010. . .” when her youngest child had been returned to her care.( FCA ยง 1028 hearing). According to this caseworker, the risk to the children was that the mother could decide at some point in the future to return to her relationship with the father. She made this assumption in spite of the fact that there was no evidence to support the notion. The mother had complied with almost every directive that had been issued to her. She had missed signing in while she was safely at her sister’s house and may not have had transport. And she had missed one therapy meeting. In fact, there was no evidence to show that she had even spoken to the father.

New York City Child Services maintained that they had felt that their decisions to remove the children from the custody of their mother who was the victim of an abusive relationship made sense to them because she had failed to keep the agency aware of where she was when she was at her aunt’s house. Their representative testified that this implied to them that she was not trustworthy. This was in spite of the fact that at no time did New York City Child Services show that the children were in any kind of imminent threat while in their mother’s care alone. The only threat to these children were the father and New York City Child Services who seemed determined to break down what little family these children had.

The Court, upon conclusion of New York City Child Services’ case granted the mother’s motion to have all three of her children returned to her. The Court scolded New York City Child Services for their lack of attempt to keep these children with their mother. The Court pointed out that “Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child[ren]’ s best interests” ( Nicholson, 3 N.Y.3d at 378, 787 N.Y.S.2d 196, 820 N.E.2d 840; In re David Edward D., 3,5 A.D.3d 856, 828 N.Y.S.2d 438 [2d Dept. 2006] It was further pointed out that the Legislature’s goal in making these laws was to put ” increased emphasis on preventive services designed to maintain family relationships.” Apparently, New York City Child Services did not get the message. The court went on to detail that another requirement of these laws as emphasized by the Court of Appeals is that the public policy in the state of New York is to keep families together whenever possible. It is clearly understood that removing children from their parents and putting them in foster care is traumatic and should be avoided whenever possible. Certainly, it can be avoided when only one parent is an abuser and safety can be restored to the home by taking the abuser out of the home and restricting that person’s access to the children.

It is well understood that removing children from their caretaker and home cause them to experience emotional and psychological harm. Therefore, in order to minimize this harm, it is suggested that the children be returned to a parent as soon as possible. In this case, the court finds that continued removal of the children from their mother is unnecessary to avoid imminent risk. It is found that any risk that was ever presented in this home was managed by the father being ordered out of the house and at a distance by a temporary order of protection. It further stated that if he failed to abide by the court order that rather than ignoring that fact and placing the mother under arrest and putting the children in foster care, that the father should just be incarcerated and the problem would be solved.

New York City Child Services supposition that the actions of the mother to fail to check in, when she and the child were safe does not establish imminent risk absent evidence of impairment according to this court. In other words, merely violating an order of supervision does not give New York City Child Services the right to take away the children without a court order. Imminent risk is required to circumvent the court order requirement of the law. Imminent risk means that there is reason to believe that if they are not immediately removed without waiting for a court order, then their lives are at risk. At no time in this situation were the children’s lives at risk while they were in the care of their mother. The court in fact was of the opinion that “assuming, without deciding, that these actions did, in fact, constitute a violation. . .” of the judge’s order. This statement implies the possibility that the court certainly did not believe that it constituted a risk to the children.

Most important of all in this evaluation was the point that “an allegedly abusive parent’s violation of an order of protection does not establish imminent risk by a non-abusive parent.” The District Court “recognized that victimized mothers are at times accused of ‘failure to protect’ their children rather than acknowledge the system’s inability to hold the actual perpetrator of violence accountable.” Holding the offender responsible for his actions is preferable to making quick off the cuff judgments that further victimize the non-offending parent.

In this case, New York City Child Services failed to meet the statutory requirements to justify an emergency removal. The belief, that the mother might at some point return to her abuser without any evidence to expect it, lacks credibility. What made this situation so heinous was that this mother herself had been a victim of domestic violence who had been repeatedly made homeless by the actions of the father, speaks frightening volumes about the system.

The three children were returned to their mother and a protective order was issued with full stay away order of protection against the father. Ongoing domestic violence counseling and referrals in crisis situations to domestic violence family shelters, as well as announced and unannounced family visits are also ordered. The father is ordered to stay away from all the children and the wife and not to communicate with the by any means, including third party contact except for supervised visitation at New York City Child Services or the agency.

Issues of law are constantly changing. A person who is not specifically trained in the law cannot begin to know what all of their rights are without the assistance of a professional. Here at Steven Bilkis and Associates, we provide New York Order of Protection Attorneys, New York Domestic Violence Lawyers, New York Assault Attorneys, and New York Criminal lawyers. New York Family Lawyers will stand by you and ensure that your rights are protected. New York Personal Injury Attorneys can argue your side and make sure that you and your loved ones are considered. We make sure that you are rightfully awarded compensation for your suffering.

Stephen Bilkis & Associates with its Domestic Violence Lawyers has convenient offices throughout the New York Metropolitan area including Corona, New York. Our Personal Injury Attorneys can provide you with advice to guide you through difficult situations. Without a Domestic Violence Lawyer you could lose precious compensation to help with your medical bills and the trauma to you and your loved ones following such a frightening experience. This is true even if the Attorney for the assailant has not adequately made their case. In addition to Personal Injury Law, Stephen Bilkis and Associates can recommend Criminal Lawyers who will protect your rights if you are ever arrested.

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