New York Family Law Blog
In this federal class action, the United States Court of Appeals for the Second Circuit has certified three questions centered on New York’s statutory scheme for child protective proceedings. The action was brought on behalf of mothers and their children who were separated because the mother had suffered domestic violence, to which the children were exposed, and the children were for that reason deemed neglected by her.
A New York Family Lawyer said that, respondent mother, on behalf of herself and her two children, brought an action pursuant to 42 USC § 1983, against the New York City Administration for Children’s Services (ACS). The action was later consolidated with similar complaints by the three named plaintiff mothers. Plaintiffs alleged that ACS, as a matter of policy, removed children from mothers who were victims of domestic violence because, as victims, they “engaged in domestic violence” and that defendants removed and detained children without probable cause and without due process of law. That policy and its implementation according to plaintiff mothers constituted, among other wrongs, an unlawful interference with their liberty interest in the care and custody of their children in violation of the United States Constitution. A New York Child Custody Lawyer said that, in August 2001, the United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents (Subclass A), and their children (Subclass B). For each plaintiff, at least one ground for removal was that the custodial mother had been assaulted by an intimate partner and failed to protect the child or children from exposure to that domestic violence. In January 2002, the District Court granted a preliminary injunction, concluding that the City may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of their mother’s batterer”.
A Bronx Family Lawyer said that, the court found that ACS unnecessarily, routinely charged mothers with neglect and removed their children where the mothers who had engaged in no violence themselves had been the victims of domestic violence; that ACS did so without ensuring that the mother had access to the services she needed, without a court order, and without returning these children promptly after being ordered to do so by the court; that ACS caseworkers and case managers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency’s written policies offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year.
The District Court concluded that ACS’s practices and policies violated both the substantive due process rights of mothers and children not to be separated by the government unless the parent is unfit to care for the child, and their procedural due process rights. The injunction, in relevant part, “prohibited ACS from carrying out ex parte removals `solely because the mother is the victim of domestic violence,’ or from filing an Article Ten petition seeking removal on that basis”.
On appeal, the Second Circuit held that the District Court had not abused its discretion in concluding that ACS’s practice of effecting removals based on a parent’s failure to prevent his or her child from witnessing domestic violence against the parent amounted to a policy or custom of ACS, that in some circumstances the removals may raise serious questions of federal constitutional law, and that the alleged constitutional violations, if any, were at least plausibly attributable to the City.
A Bronx Custody Lawyer said the issue to be resolved in this case is whether or not the District Court abused its discretion in concluding that ACS’s practice of effecting removals based on a parent’s failure to prevent his or her child from witnessing domestic violence against the parent amounted to a policy or custom of ACS.
The Court said that, given the strong preference for avoiding unnecessary constitutional adjudication, the importance of child protection to New York State and the integral part New York courts play in the removal process, the Second Circuit, by three certified questions, chose to put the open state statutory law issues to us for resolution. The court accepted certification, and now proceeds to answer those questions.
“Does the definition of a `neglected child’ under N.Y. Family Ct. Act § 1012(f), (h) includes instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child’s care allows the child to witness domestic abuse against the caretaker?”
Family Court Act § 1012 (f) is explicit in identifying the elements that must be shown to support a finding of neglect. As relevant here, it defines a “neglected child” to mean: “a child less than eighteen years of age “(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care”(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court.”
Thus, a party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship. The drafters of Article 10 were “deeply concerned” that an imprecise definition of child neglect might result in “unwarranted state intervention into private family life”.
The first statutory element requires proof of actual (or imminent danger of) physical, emotional or mental impairment to the child. This prerequisite to a finding of neglect ensures that the Family Court, in deciding whether to authorize state intervention will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior. “Imminent danger” reflects the Legislature’s judgment that a finding of neglect may be appropriate even when a child has not actually been harmed; “imminent danger of impairment to a child is an independent and separate ground on which a neglect finding may be based. Imminent danger, however, must be near or impending, not merely possible.
The cases at bar concern, in particular, alleged threats to the child’s emotional, or mental, health. The statute specifically defines “impairment of emotional health” and “impairment of mental or emotional condition” to include “a state of substantially diminished psychological or intellectual functioning in relation to, but not limited to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and reason, or acting out or misbehavior, including incorrigibility, un-governability or habitual truancy”.
In such circumstances, the battered mother is charged with neglect not because she is a victim of domestic violence or because her children witnessed the abuse, but rather because a preponderance of the evidence establishes that the children were actually or imminently harmed by reason of her failure to exercise even minimal care in providing them with proper oversight.
Next, we are called upon to focus on removals by ACS, in answering the question: “Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker constitute `danger’ or `risk’ to the child’s `life or health,’ as those terms are defined in the N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?”
The cited Family Court Act sections relate to the removal of a child from home. Thus, in essence, we are asked to decide whether emotional injury from witnessing domestic violence can rise to a level that establishes an “imminent danger” or “risk” to a child’s life or health, so that removal is appropriate either in an emergency or by court order. While we do not reach the constitutional questions, it is helpful in framing the statutory issues to note the Second Circuit’s outline of the federal constitutional questions relating to removals. Their questions emerge in large measure from the District Court’s findings of an “agency-wide practice of removing children from their mother without evidence of a mother’s neglect and without seeking prior judicial approval”, and Family Court review of removals that “often fails to provide mothers and children with an effective avenue for timely relief from ACS mistakes”.
As we concluded in response to Certified Question No. 1, exposing a child to domestic violence is not presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori, exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good. Part 2 of Article 10 of the Family Court Act sets forth four ways in which a child may be removed from the home in response to an allegation of neglect (or abuse) related to domestic violence: 1) temporary removal with consent; 2) preliminary orders after a petition is filed; 3) preliminary orders before a petition is filed; and 4) emergency removal without a court order. The Practice Commentaries state, and we agree, that the sections of Article 10, Part 2 create a “continuum of consent and urgency and mandate a hierarchy of required review” before a child is removed from home.
Finally, the Second Circuit asks us: “Does the fact that the child witnessed such abuse suffice to demonstrate that `removal is necessary,’ N.Y. Family Ct. Act §§ 1022, 1024, 1027, or that `removal was in the child’s best interests,’ N.Y. Family Ct. Act §§ 1028, 1052(b)(i)(A), or must the child protective agency offer additional, particularized evidence to justify removal?”
The Circuit Court has before it the procedural due process question whether, if New York law permits a presumption that removal is appropriate based on the witnessing of domestic violence. All parties maintain, however, and we concur, that under the Family Court Act, there can be no “blanket presumption” favoring removal when a child witnesses domestic violence, and that each case is fact-specific. As demonstrated in our discussion of Certified Question No. 2, when a court orders removal, particularized evidence must exist to justify that determination, including, where appropriate, evidence of efforts made to prevent or eliminate the need for removal and the impact of removal on the child.
Granted, in some cases, it may be difficult for an agency to show, absent expert testimony, that there is imminent risk to a child’s emotional state, and that any impairment of emotional health is “clearly attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care toward the child”. Yet nothing in the plain language of Article 10 requires such testimony. The tragic reality is, as the facts to show, that emotional injury may be only one of the harms attributable to the chaos of domestic violence.
Accordingly, the certified questions should be answered in accordance with this Opinion. Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in accordance with the opinion herein.
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