New York Family Law Blog
A New York Family Lawyer said an institution for children’s welfare requested to the court a decision without trial against a mother asserting that there are no genuine issues of fact. They also request for an order finding that the child is a neglected child and his sibling, a derivatively neglected child.
In support of the motion, the complainant submitted the transcript from a criminal court proceeding, containing the mother’s allocution to the endangering of the welfare of a child and her acknowledgment that on one occasion she hit her child with an open hand causing a bruise or a black eye, but no injury.
The aforementioned matter started when the institution filed a neglect petitions against a mother alleging that her child was a neglected child because the mother inflicted excessive corporal punishment against him, causing the child to sustain a bruises to his right eye. In addition, the petitions allege that the child reported that his mother has beaten him on prior occasions with a belt.
A New York Child Custody Lawyer said sources revealed that the mother has four prior indicated cases against her which related to her using excessive corporal punishment. The petitions lastly aver that the child’s sibling is a derivatively neglected child.
On the same date, the court granted the motion of the institution for a removal of the children and a remand to their care.
Afterward, a Long Island Family Lawyer said in criminal court, the mother pled guilty to the endangering of the welfare of a child. The criminal court accepted the mother’s admission and sentenced her for a period of three months imprisonment. In addition, the court entered a final order of protection against the mother on behalf of the child.
Subsequently, the matter was transferred and the court, upon the mother’s request, conducted a hearing. At the conclusion of the trial, the court granted the mother’s application for the return of the children.
Based on records, a Long Island Child Custody Lawyer said the court established the appropriateness of the decision without trial in abuse and neglect proceedings in a previous related court case. The court stated that an immediate decision is useful in expediting the just resolution of a legal dispute and in conserving overburdened judicial resources. When there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the trial calendar and thus deny to other litigants the right to have their claims properly mediated.
But, the burden on a motion is upon the complainant who is required to set forth a case showing of its entitlement to the decision without trial regardless of the sufficiency of the opposing papers. If the complainant fails to meet its burden, then the motion must be denied.
The court also stated that even as the immediate decision may be warranted in certain child protective proceedings, it remains a severe procedural device which will be found appropriate only in those conditions when it has been clearly ascertained that there is no triable issue of fact outstanding.
In the case presented, the mother’s admissions are insufficient to establish that the child is a neglected child or that his sister is a derivatively neglected child without additional evidence presented at a fact-finding hearing.
Sources revealed that the penal law provides that a person is guilty of endangering the welfare of a child when he or she knowingly acts in a manner likely to be harmful to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health, or being a parent, guardian or other person legally charged with the care or child custody less than eighteen years old, he or she fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an abused child, a neglected child, a juvenile delinquent or a person in need of supervision.
Moreover, the family court act defines a neglected child as one whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the offender to exercise a minimum degree of care.
In other case presented in court, the offender also pled guilty to endangering the welfare of a child. She thereby admitted that she knowingly acted in a manner likely to be injurious to the welfare of her son. In addition, she admitted that she that on one occasion, she hit the child in the face with on open hand and caused a bruise or a black eye, however, the record establishes that her actions did not result in any actual injury to the child.
The court also avers that an action that is likely to be injurious but which results in no injury is not necessarily one that causes an impairment or imminent danger of impairment. In this regard, the requirements for the risk of injury standard set by the family court act are higher than the one set by the penal law.
In the case of the mother, the mother’s acknowledgment that she hit her son in the face with an open hand on one occasion is likewise insufficient to warrant the immediate decision. It is black letter law that one act of child maltreatment may, in certain instances, be sufficient to establish child neglect.
Based on records, the family court act provides that proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of the offender. Even in the absence of direct evidence of actual abuse or neglect of a second child, a derivative finding of neglect may be made where the evidence as to the directly abused or neglected child demonstrates such an impaired level of parental decision as to create a substantial risk of harm for any child in their care, thereby making such a child neglected under the law.
Furthermore, it is well settled that evidence as to the neglect of one child, standing alone, does not establish a case of neglect of other children in a parent’s care. The determinative factor is whether the nature of the neglect, notably its duration and the circumstances surrounding its commission evidences fundamental flaws in the offender’s understanding of the duties of parenthood the derivative finding may be justified if the prior finding was so proximate in time to the derivative proceeding, that it can reasonably be concluded that the condition still exists.
In the case presented, the institution asserts that a derivative finding is appropriate and that a request for immediate decision should be granted based on the mother’s fundamentally flawed understanding of the duties of parenthood and her actions toward her child.
Having found that the mother’s admissions are insufficient to establish neglect itself as to the target child, the court cannot conclude that her admissions are sufficient to establish derivative neglect as to the child’s sibling. Moreover, even if the court were to grant the request as to the child based on the criminal court plea and allocution, it would nevertheless be required to deny it as to the child’s sibling. For that reason, the court ordered to deny the institutions request.
Whenever you have contentions with your child’s guardianship or support, you can seek legal assistance from the Kings County Custody Attorney or Kings County Child Custody Lawyers. Further, Stephen Bilkis and Associates also suggest the expertise of their Kings County Family Lawyer. You can visit or call their office for more queries.