New York Family Law Blog
This child protective proceeding was commenced on June 17, 1983, pursuant to Family Court Act, Art. 10. A Bronx Order of Protection Lawyer said that, the neglect petition was filed one week after the police had responded to a neighbor’s call of a child beating, whereupon it was ascertained that the subject child, had multiple bruises, welts and lacerations. The hospital record, almost 50 pages in length, is replete with gross references that there were “multiple bruises all over body,” both old and fresh injuries, cigarette burns and belt buckle marks. The subject child, who was approximately 5 years of age at that time, also disclosed that she had been previously raped by her uncle, the mother, was arrested for endangering the welfare of a minor and, after pleading guilty, was sentenced to probation. Although she initially admitted that she had hit the subject child with a belt, she later denied it, claiming that the injuries were self-inflicted and, subsequently, she stated that she only hit the child with the cloth part of the belt.
A Bronx Order of Protection Lawyer said it appears that the mother has had a long history of psychiatric problems, having been in foster care almost since birth. At the age of 15, while she was living with her mother, she was sexually abused by her mother’s boyfriend, resulting in the birth of the subject child on June 20, 1978. Her other child, was born on July 5, 1982. At the time of these events, the respondent mother was employed as a typist and, to save the expense of babysitters, she had asked her brother, to stay with the children while she was at work. It is alleged that, between April and June, 1983, her brother repeatedly sodomized the subject child, who, although afraid to tell her mother did tell a neighbor’s son, whose mother told the respondent mother what had occurred. She did not report this to the police but claims she did attempt to comfort the child.
A New York Family Lawyer said that, a fact-finding hearing was held on December 21, 1983, where the court, over the objection of both the assistant corporation counsel and the law guardian, accepted an admission of neglect by the mother that she had hit the child on the arm with a cloth belt, but not with the belt buckle. The court did not allow any other evidence on the issue of abuse or neglect. Subsequently, a dispositional hearing was held, at which a staff psychiatrist, with the Family Court Mental Health Services, testified that the subject child was fearful of her mother, had refused any visitation with her and was not interested in returning to her custody. It was recommended that the child be continued in foster care and, receive psychiatric treatment, with limited supervised visitation. A psychological evaluation disclosed that the child was emotionally traumatized as a result of the mother’s physical and verbal abuse and that returning the child to the mother would, in all likelihood, lead to further abuse in the future.
In the face of this overwhelming evidence and recommendation that the child continue in foster care, a New York Custody Lawyer said that the Family Court, nevertheless, concluded that petitioner had not met its burden “in establishing that the subject child would fair better in continued foster care.” Concluding that individual psychotherapy was needed for the mother and the subject child, the court placed both children with the Commissioner for 18 months, with the direction that the children reside with the mother, subject to certain conditions, namely, that she was to cooperate in participating in a counseling and therapy program. An order of protection was issued, precluding any contact between the children and the respondent mother’s brother.
The issue in this case is whether the Family Court erred in placing the custody of the subject child to her mother.
The Court finds inadequate support in the record to sustain the disposition of the Family Court, taking into account the gross charges of extreme neglect and abuse on the part of the mother and the overwhelming proof that the child should continue in foster care under the custody of the Commissioner. A Nassau County Family Lawyer said the decision permitting the child to reside with the mother did not give sufficient consideration to the opinions offered at the hearing as to the substantial risk of future abuse. Clearly, the paramount concerns are the best interests and welfare of the child, which required the court to take into account the potential threat to the child’s health and safety. The court is duty-bound, not only to determine whether there has been neglect or abuse, but also the likelihood of this conduct in the future. Here, the court did not fulfill that responsibility.
In child protective proceedings, a Nassau County Custody Lawyer said the Commissioner has the burden of establishing abuse and neglect by a preponderance of the evidence. The statute provides that “proof of injuries sustained by a child or of the condition of a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child shall be prima facie evidence of child abuse or neglect” (Family Court Act, section 1046[a][ii] ). Upon proof to establish a prima facie case, the respondent must offer a satisfactory explanation to rebut the evidence of neglect. In rendering its decision, the court must set forth the specific grounds for its finding that the child had been abused or neglected (Family Court Act, section 1051).
The Court agrees that the trial court abused its discretion in failing to hold a full fact-finding hearing and by accepting, in lieu thereof, the mother’s admission of neglect. This was error and was compounded by the court’s finding that “the petitioner has not met its burden of proof in establishing that the subject child would fair better in continued foster care.” We fail to perceive any basis for this finding or the conclusion that “continued separation was not in the best interest of this child and the mother.” The court terminated the hearing in the face of a hospital record demonstrating clear evidence of physical and sexual abuse, sufficient to conclude that the child’s continuing to reside with the mother may pose a real danger in the future. Nor did the court state the grounds for its finding of neglect, as required (Family Court Act, section 1051).
Therefore, the Court remands the matter for a de novo fact-finding and dispositional hearing before a different judge. Accordingly, the Court held that the orders (two papers), Family Court, Bronx County, removing the subject child from foster care and placing her in the custody of the Commissioner of Social Services, with a direction that the child reside with respondent mother, should be reversed, on the law and the facts, without costs or disbursements, and the matter remanded for new fact-finding and dispositional hearings to be held before another judge of the Family Court.
In a child protective proceeding, the paramount concerns are the best interests and welfare of the child, which required the court to take into account the potential threat to the child’s health and safety. If a child is being subjected to any form of abuse, while under the custody of her parents, you will need the help of a Bronx Order of Protection Attorney and/or Bronx Child Custody Attorney in order to protect the child from further risk and harm. Bronx Family Attorney at Stephen Bilkis and Associates can represent your case.