New York Family Law Blog
It was on August 11, 1998, when a child was found abandoned by police officers in a bedroom of the home of respondent, (the child’s mother). The nine-year-old child had been bound with electrical cords, hooded with a pillowcase tied around his neck, and gagged with a sock stuffed in his mouth and secured by electrical tape wrapped around his face. A New York Family Lawyer said the child’s arms and legs had been tied so that he was forced to remain standing in a cruciform position; he was otherwise naked, and loud music was left playing in the room. The door to the room was taped shut. When discovered, the child had been tied up since August 7, 1998; he was found to have sustained several old and healing cuts and bruises, whip marks, and numerous scars and lacerations.
The Department of Social Services (hereinafter Department) petitioned against respondents, for a determination that the children are abused children. During the trial, the court issued a Fact-Finding Order and an accompanying decision on July 7, 1999. The court determined the facts recounted above and found that petitioner had adequately proven that the child was the victim of abuse perpetuated by respondent caretakers.
As defined by Family Court Act section 1012 (e) (i) and (ii). The said abuse comprised at least four occasions when the child was tied up and numerous occasions when he was whipped and beaten. The court further concluded that petitioner also met the higher burden of proving by clear and convincing evidence that the respondent repeatedly and severely abused the child. Therefore, a New York Child Custody Lawyer said in addition to the finding of abuse as to both respondents, the court found based upon clear and convincing evidence that the said child was the victim of severe and repeated abuse inflicted by respondent. Hence, an Order of Protection was issued by the court.
A Nassau County Family Lawyer said later on, petitioner made an application by written motion for an order pursuant to the Family Court Act determining that reasonable efforts to reunite the subject children with the respondent mother shall not be required.
The court determined the following issues in this case: First, whether the newly enacted Family Court Act is applicable where the petition alleging the abuse or neglect of a child was filed prior to the effective date of New York’s ASFA legislation and second, whether a motion pursuant to Family Court Act to relieve the Department of Social Services of its obligation to make reasonable efforts to reunite the child and parent may be made and determined after the fact-finding adjudication of neglect or abuse, but prior to the holding of the dispositional hearing.
On August 27, 1999, the counsel for respondent made oral application to have the Law Guardian removed from simultaneous representation of both children, alleging that the brothers are not similarly situated and that the Law Guardian’s representation of both presents a conflict.
However, the said motion was denied because the court has previously determined that the establishment of the abuse by respondent to the child constituted admissible proof of her neglect of his brother, which proof respondent failed to meet. In view of this, the respondent’s motion was belated, unsupported by any material factual or legal distinction between the children, and can only serve to further delay the disposition of this matter.
A Staten Island Family Lawyer said under the law, “[a] Law Guardian’s role in a child protective proceeding not only includes serving as counsel and advocate for the child, but also encompasses aiding the court in arriving at an appropriate disposition”. A Law Guardian “may thus attempt to persuade the court to adopt that position which, in the Law Guardian’s judgment, would best promote the child’s interest”. The court found that the Law Guardian will properly discharge its responsibility, and counsel for the respondent has failed to allege any material conflict or potential conflict of interest which would bar the Law Guardian from representing both children.
The second issue concerns the applicability of Family Court Act where the petition alleging the abuse or neglect of a child was filed prior to the effective date of New York’s ASFA legislation.
It has been observed in a recent case applying ASFA provisions retroactively in a termination of parental rights proceeding that “statutes affecting the welfare of children and furthering important public policies are generally given retroactive effect.” While new statutes are presumptively prospective, a statute which is remedial in nature may be applied retroactively unless such application would impair vested rights.
Further support for the application of Family Court Act in this case was the fact that section 1055 (c) of the Family Court Act has long provided that in addition to an Order of Protection, the court may direct the agency to undertake diligent efforts to encourage and strengthen the parental relationship “when it finds such efforts will not be detrimental to the best interests of the child.” Thus, since respondents in were previously subject to a court determination that diligent efforts should not be undertaken by the agency when prospectively detrimental to the child, the Family Court Act cannot be said to impair any vested right of the respondent herein. Rather, in passing Family Court Act, the Legislature provided a procedure for bringing on a motion to determine whether reasonable efforts must be undertaken. According to the court, procedural matters are determined by the law in force when they arise, and that procedural changes in the law are generally deemed applicable to subsequent proceedings in pending cases. For the above reasons, the court held that Family Court Act is remedial and procedural in nature and may properly be applied to proceedings filed before the effective date of New York’s ASFA legislation.
With this, the court ordered that respondent’s motion to remove the Law Guardian from further representation of both of the subject children was denied. On the other hand, the petitioner’s motion for an order pursuant to Family Court Act determining that reasonable efforts to reunite the subject children with the respondent mother shall not be required was granted.