Case #1:
2004 WL 2381177 (N.Y.)
--- N.E.2d ---
Only the Westlaw citation is currently available.
THIS DECISION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE
NEW YORK REPORTS.
Court of Appeals of New York.
Sharwline NICHOLSON, & c. et al., Respondents,
v.
Nicholas SCOPPETTA, & c., et al., Appellants.
Nat Williams, et al., Defendants.
Oct. 26, 2004.
Alan G. Krams, for appellants.
David J. Lansner, for Subclass A respondents.
Judith Waksberg for Subclass B respondents.
National Coalition Against Domestic Violence, et al.; National Network to End
Domestic Violence, Inc., et al.; New York State Coalition Against Domestic
Violence, et al.; Pennsylvania Coalition Against Domestic Violence, et al.;
Legal Momentum, et al.; The Appellate Advocacy Network, et al.; The Center for
Family Representation, Inc.; New York Legal Assistance Group, et al.; Wilbur
McReynolds; Ohio Domestic Violence Network, et al.; Joseph L. Woolston, M.D., et
al., amici curiae.
KAYE, Chief Judge.
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 is 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.
In April 2000, Sharwline Nicholson, 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). [FN1] The action was later
consolidated with similar complaints by Sharlene Tillet and Ekaete Udoh--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.
FN1. "ACS" includes all named City defendants, including the City of New York.
Apart from defendant John Johnson (Commissioner of the State Office of Children
and Family Services, which oversees ACS), state officials are named in the
complaint with respect to the assigned counsel portion of the case, which is not
before us.
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) (Nicholson v.. Williams, 205 FRD 92, 95, 100 [ED
N.Y.2001] ). 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" (In re Nicholson, 181 F Supp 2d 182, 188 [ED N.Y. Jan. 20,
2002]; see also Nicholson v. Williams, 203 F Supp 2d 153 [ED N.Y. Mar. 18, 2002]
[108-page elaboration of grounds for injunction] ).
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; [FN2] 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 (203 F Supp 2d at 228-229).
FN2. The District Court cited the testimony of a child protective manager that
it was common practice in domestic violence cases for ACS to wait a few days
before going to court after removing a child because "after a few days of the
children being in foster care, the mother will usually agree to ACS's conditions
for their return without the matter even going to court" (203 F Supp 2d at 170).
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 (181 F Supp 2d at 185). The injunction, in
relevant part, "prohibit[ed] 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" (Nicholson v. Scoppetta, 344
F3d 154, 164 [2d Cir2003] [internal citations omitted] ). [FN3]
FN3. The injunction was stayed for six months to permit ACS to attempt reform on
its own, free of the court's involvement, and to allow for an appeal.
Thereafter, the City and ACS appealed, challenging the District Court's
determination. The Second Circuit denied the City's request for an additional
stay pending appeal.
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 (344 F3d at 165-167, 171- 176). [FN4] The
Court hesitated, however, before reaching the constitutional questions,
believing that resolution of uncertain issues of New York statutory law would
avoid, or significantly modify, the substantial federal constitutional issues
presented (id. at 176).
FN4. Chief Judge Walker dissented, concluding that the injunction should be
vacated because the evidence did not support the District Court's findings
underpinning the injunction. In his view, the District Court's central factual
finding that ACS had a policy of regularly separating battered mothers and
children unnecessarily was "simply unsustainable" (id. at 177).
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. We accepted certification (1 NY3d 538 [2003] ), and now
proceed to answer those questions. [FN5]
FN5. We are not asked to, nor do we, apply our answers to the trial record,
though recognizing that in the inordinately complex human dilemma presented by
domestic violence involving children, the law may be easier to state than apply.
Certified Question No. 1: Neglect
"Does the definition of a 'neglected child' under N.Y. Family Ct. Act § 1012(f),
(h) include 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?"
We understand this question to ask whether a court reviewing an Article 10
petition may find a respondent parent responsible for neglect based on evidence
of two facts only: that the parent has been the victim of domestic violence, and
that the child has been exposed to that violence. That question must be answered
in the negative. Plainly, more is required for a showing of neglect under New
York law than the fact that a child was exposed to domestic abuse against the
caretaker. Answering the question in the affirmative, moreover, would read an
unacceptable presumption into the statute, contrary to its plain language.
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 (see Family Ct Act § 1046[b][i] ), 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" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book
29A, Family Ct Act § 1012 at 320, [1999 ed] ).
The first statutory element requires proof of actual (or imminent danger of)
physical, emotional or mental impairment to the child (see Nassau County Dept.
of Social Servs. on behalf of Dante M. v. Denise J., 87 N.Y.2d 73, 78-79 [1995]
). 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" (Dante M., 87 N.Y.2d at 79).
Imminent danger, however, must be near or impending, not merely possible.
In each case, additionally, there must be a link or causal connection between
the basis for the neglect petition and the circumstances that allegedly produce
the child's impairment or imminent danger of impairment. In Dante M., for
example, we held that the Family Court erred in concluding that a newborn's
positive toxicology for a controlled substance alone was sufficient to support a
finding of neglect because the report, in and of itself, did not prove that the
child was impaired or in imminent danger of becoming impaired (87 N.Y.2d at 79).
We reasoned, "[r]elying solely on a positive toxicology result for a neglect
determination fails to make the necessary causative connection to all the
surrounding circumstances that may or may not produce impairment or imminent
risk of impairment in the newborn child" (id.). The positive toxicology report,
in conjunction with other evidence--such as the mother's history of inability to
care for her children because of her drug use, testimony of relatives that she
was high on cocaine during her pregnancy and the mother's failure to testify at
the neglect hearing--supported a finding of neglect and established a link
between the report and physical impairment.
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, ungovernability or
habitual truancy"
(Family Ct Act § 1012[h] ). Under New York law, "such impairment must be clearly
attributable to the unwillingness or inability of the respondent to exercise a
minimum degree of care toward the child" (id.). Here, the Legislature recognized
that the source of emotional or mental impairment-- unlike physical injury--may
be murky, and that it is unjust to fault a parent too readily. The Legislature
therefore specified that such impairment be "clearly attributable" to the
parent's failure to exercise the requisite degree of care.
Assuming that actual or imminent danger to the child has been shown, "neglect"
also requires proof of the parent's failure to exercise a minimum degree of
care. As the Second Circuit observed, "a fundamental interpretive question is
what conduct satisfies the broad, tort-like phrase, 'a minimum degree of care.'
The Court of Appeals has not yet addressed that question, which would be
critical to defining appropriate parental behavior" (344 F3d at 169).
"Minimum degree of care" is a "baseline of proper care for children that all
parents, regardless of lifestyle or social or economic position, must meet"
(Besharov, at 326). Notably, the statutory test is "minimum degree of care"--
not maximum, not best, not ideal-and the failure must be actual, not threatened
(see e.g. Matter of Hofbauer, 47 N.Y.2d 648, 656 [1979] [recognizing, in the
context of medical neglect, the court's role is not as surrogate parent and the
inquiry is not posed in absolute terms of whether the parent has made the
"right" or "wrong" decision] ).
Courts must evaluate parental behavior objectively: would a reasonable and
prudent parent have so acted, or failed to act, under the circumstances then and
there existing (see Matter of Jessica YY., 258 A.D.2d 743, 744 [3d Dept 1999] ).
The standard takes into account the special vulnerabilities of the child, even
where general physical health is not implicated (see Matter of Sayeh R., 91
N.Y.2d 306, 315, 317 [1997] [mother's decision to demand immediate return of her
traumatized children without regard to their need for counseling and related
services "could well be found to represent precisely the kind of failure 'to
exercise a minimum degree of care' that our neglect statute contemplates"] ).
Thus, when the inquiry is whether a mother--and domestic violence victim--failed
to exercise a minimum degree of care, the focus must be on whether she has met
the standard of the reasonable and prudent person in similar circumstances.
As the Subclass A members point out, for a battered mother--and ultimately for a
court--what course of action constitutes a parent's exercise of a "minimum
degree of care" may include such considerations as: risks attendant to leaving,
if the batterer has threatened to kill her if she does; risks attendant to
staying and suffering continued abuse; risks attendant to seeking assistance
through government channels, potentially increasing the danger to herself and
her children; risks attendant to criminal prosecution against the abuser; and
risks attendant to relocation. [FN6] Whether a particular mother in these
circumstances has actually failed to exercise a minimum degree of care is
necessarily dependent on facts such as the severity and frequency of the
violence, and the resources and options available to her (see Matter of Melissa
U., 148 A.D.2d 862 [3d Dept 1989]; Matter of James MM. v. June OO., 294 A.D.2d
630 [3d Dept 2002] ).
FN6. The Legislature has recognized this "quandary" that a victim of domestic
violence encounters (Senate Mem In Supp, 2002 McKinney's Session Laws of NY, at
1821). To avoid punitive responses from child protective services agencies, the
Legislature attempted to increase awareness of child protective agencies of the
dynamics of domestic violence and its impact on child protection by amending the
Social Services Law to mandate comprehensive domestic violence training for
child protective services workers. (id.).
Only when a petitioner demonstrates, by a preponderance of evidence, that both
elements of section 1012(f) are satisfied may a child be deemed neglected under
the statute. When "the sole allegation" is that the mother has been abused and
the child has witnessed the abuse, such a showing has not been made. This does
not mean, however, that a child can never be "neglected" when living in a
household plagued by domestic violence. Conceivably, neglect might be found
where a record establishes that, for example, the mother acknowledged that the
children knew of repeated domestic violence by her paramour and had reason to be
afraid of him, yet nonetheless allowed him several times to return to her home,
and lacked awareness of any impact of the violence on the children, as in Matter
of James MM., 294 A.D.2d at 632; or where the children were exposed to regular
and continuous extremely violent conduct between their parents, several times
requiring official intervention, and where caseworkers testified to the fear and
distress the children were experiencing as a result of their long exposure to
the violence (Matter of Theresa CC., 178 A.D.2d 687 [3d Dept 1991] ).
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.
Certified Question No. 2: Removals
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" (203 F Supp 2d at 215), and Family
Court review of removals that "often fails to provide mothers and children with
an effective avenue for timely relief from ACS mistakes" (id. at 221).
Specifically, as to ex parte removals, the Circuit Court identified procedural
due process and Fourth Amendment questions focused on whether danger to a child
could encompass emotional trauma from witnessing domestic violence against a
parent, warranting emergency removal. Discussing the procedural due process
question, the Court remarked that:
"there is a strong possibility that if New York law does not authorize ex parte
removals, our opinion in Tenenbaum at least arguably could weigh in favor of
finding a procedural due process violation in certain circumstances. If New York
law does authorize such removals, Tenenbaum likely does not prohibit us from
deferring to that judgment. In either case, the underlying New York procedural
rules will also be an important component of our balancing. Thus, the state-law
question of statutory interpretation will either render unnecessary, or at least
substantially modify, the federal constitutional question" (344 F3d at 172). [FN7]
FN7. In Tenebaum v. Williams (193 F3d 581 [2d Cir1999] ), a child's parents
brought an action pursuant to 42 USC § 1983 challenging the New York City Child
Welfare Administration's removal of their five-year-old from her kindergarten
class--under the emergency removal provision of Family Court Act § 1024--and
taking her to the emergency room where a pediatrician and a gynecologist
examined her for signs of possible sexual abuse. When they found none, the child
was returned to her parents. The Second Circuit reversed the District Court's
judgment in pertinent part and held that a jury could have concluded that the
emergency removal for the medical examination violated the parents' and child's
procedural due process rights, and the child's Fourth Amendment rights.
The Court also questioned whether "in the context of the seizure of a child by a
state protective agency the Fourth Amendment might impose any additional
restrictions above and beyond those that apply to ordinary arrests" (id. at 173).
As to court-ordered removals, the Second Circuit recognized challenges based on
substantive due process, procedural due process--the antecedent of Certified
Question No. 3--and the Fourth Amendment. The substantive due process question
concerned whether the City had offered a reasonable justification for the
removals. The Second Circuit observed that "there is a substantial Fourth
Amendment question presented if New York law does not authorize removals in the
circumstances alleged" (id. at 176).
Finally, in certifying the questions to us, the Court explained that:
"[t]here is ... some ambiguity in the statutory language authorizing removals
pending a final determination of status. Following an emergency removal, whether
ex parte or by court order, the Family Court must return a removed child to the
parent's custody absent 'an imminent risk' or 'imminent danger' to 'the child's
life or health.' At the same time, the Family Court must consider the 'best
interests of the child' in assessing whether continuing removal is necessary to
prevent threats to the child's life or health. Additionally, in order to support
removal, the Family Court must 'find[ ] that removal is necessary to avoid
imminent risk. How these provisions should be harmonized seems to us to be the
province of the Court of Appeals' " (344 F3d at 169 [internal citations omitted] ).
The Circuit Court summarized the policy challenged by plaintiffs and found by
the District Court as "the alleged practice of removals based on a theory that
allowing one's child to witness ongoing domestic violence is a form of neglect,
either simply because such conduct is presumptively neglectful or because in
individual circumstances it is shown to threaten the child's physical or
emotional health" (id. at 166 n 5).
It is this policy, viewed in light of the District Court's factual findings,
that informs our analysis of Certified Question No. 2. In so doing, we
acknowledge the Legislature's expressed goal of "placing increased emphasis on
preventive services designed to maintain family relationships rather than
responding to children and families in trouble only by removing the child from
the family" (see Mark G. v. Sabol, 93 N.Y.2d 710, 719 [1999] [construing Child
Welfare Reform Act of 1979 [L 1979, chs 610, 611] ). We further acknowledge the
legislative findings, made pursuant to the Family Protection and Domestic
Violence Intervention Act of 1994, that
"the corrosive effect of domestic violence is far reaching. The batterer's
violence injures children both directly and indirectly. Abuse of a parent is
detrimental to children whether or not they are physically abused themselves.
Children who witness domestic violence are more likely to experience delayed
development, feelings of fear, depression and helplessness and are more likely
to become batterers themselves" (L 1994, ch 222, § 1; see also People v. Wood,
95 N.Y.2d 509, 512 [2000] [though involving a batterer, not a victim] ).
These legislative findings represent two fundamental--sometimes conflicting--
principles. New York has long embraced a policy of keeping "biological families
together" (Matter of Marino S., Jr., 100 N.Y.2d 361, 372 [2003] ). Yet "when a
child's best interests are endangered, such objectives must yield to the State's
paramount concern for the health and safety of the child" (id. at 372).
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 issue before us is whether emotional harm suffered by
a child exposed to domestic violence, where shown, can warrant the trauma of
removal under any of these provisions.
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 (see Besharov, Practice
Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1021 at 5
[1999 ed] ).
Consent Removal
First, section 1021 provides that a child may be removed "from the place where
he is residing with the written consent of his parent or other person legally
responsible for his care, if the child is an abused or neglected child under
this article" (Family Court Act § 1021; see Tenenbaum v. Williams, 193 F3d 581,
590 n 5 [2d Cir1999]; Matter of Jonathan P., 283 A.D.2d 675 [3d Dept 2001] ).
This section is significant because "many parents are willing and able to
understand the need to place the child outside the home and because resort to
unnecessary legal coercion can be detrimental to later treatment efforts"
(Besharov, at 6).
Post-Petition Removal
If parental consent cannot be obtained, section 1027, at issue here, provides
for preliminary orders after the filing of a neglect (or abuse) petition. Thus,
according to the statutory continuum, where the circumstances are not so
exigent, the agency should bring a petition and seek a hearing prior to removal
of the child. In any case involving abuse--or in any case where the child has
already been removed without a court order--the Family Court must hold a hearing
as soon as practicable after the filing of a petition, to determine whether the
child's interests require protection pending a final order of disposition
(Family Ct Act § 1027[a] ). As is relevant here, the section further provides
that in any other circumstance (such as a neglect case), after the petition is
filed any person originating the proceeding (or the Law Guardian) may apply
for--or the court on its own may order--a hearing to determine whether the
child's interests require protection, pending a final order of disposition
(id.). [FN8]
FN8. Under section 1028, a parent or person legally responsible for the care of
a child may petition the court for return of the child after removal, if he or
she was not present or given an adequate opportunity to be present at the
section 1027 hearing. The factors to be considered when returning a child
removed in an emergency mirror those considered in an initial determination
under sections 1027 and 1022-- best interests, imminent risk, and reasonable
efforts to avoid removal.
For example, in Matter of Adam DD. (112 A.D.2d 493 [3d Dept 1985] ), after
filing a child neglect petition, petitioner Washington County Department of
Social Services sought an order under section 1027. At a hearing, evidence
demonstrated that respondent-mother had told her son on several occasions that
she intended to kill herself, and Family Court directed that custody be placed
with petitioner on a temporary basis for two months. At the subsequent
dispositional hearing, a psychiatrist testified that respondent was suffering
from a type of paranoid schizophrenia that endangered the well-being of the
child, and recommended the continued placement with petitioner. A second
psychiatrist concurred. The Appellate Division concluded that the record
afforded a basis for Family Court to find neglect because of possible impairment
of the child's emotional health, and continued placement of the child with
petitioner.
While not a domestic violence case, Matter of Adam DD. is instructive because it
concerns steps taken in the circumstance where a child is emotionally harmed by
parental behavior. The parent's repeated threats of suicide caused emotional
harm that could be akin to the experience of a child who witnesses repeated
episodes of domestic violence perpetrated against a parent. In this
circumstance, the agency did not immediately remove the child, but proceeded
with the filing of a petition and a hearing.
Upon such a hearing, if the court finds that removal is necessary to avoid
imminent risk to the child's life or health, it is required to remove or
continue the removal and remand the child to a place approved by the agency
(Family Ct Act § 1027[b][i] ). In undertaking this inquiry, the statute also
requires the court to consider and determine whether continuation in the child's
home would be contrary to the best interests of the child (id.). [FN9]
FN9. The order must state the court's findings which support the
necessity of removal, whether the parent was present at the hearing, what notice
was given to the parent of the hearing and under what circumstances the removal
took place (Family Ct Act § 1027[b][i] ).
The Circuit Court has asked us to harmonize the "best interests" test with the
calculus concerning "imminent risk" and "imminent danger" to "life or health"
(344 F3d at 169). In order to justify a finding of imminent risk to life or
health, the agency need not prove that the child has suffered actual injury (see
Matter of Kimberly H., 242 A.D.2d 35, 38 [1st Dept 1998] ). Rather, the court
engages in a fact-intensive inquiry to determine whether the child's emotional
health is at risk. Section 1012(h), moreover, sets forth specific factors,
evidence of which may demonstrate "substantially diminished psychological or
intellectual functioning" (see also Matter of Sayeh R., 91 N.Y.2d 306, 314-316
[1997]; Nassau County Dept. of Social Servs. on behalf of Dante M. v. Denise J.,
87 N.Y.2d 73, 78-79 [1995] ). As noted in our discussion of Certified Question
No. 1, section 1012(h) contains the caveat that impairment of emotional health
must be "clearly attributable to the unwillingness or inability of the
respondent to exercise a minimum degree of care toward the child" (see Matter of
Theresa CC., 178 A.D.2d 687 [3d Dept 1991] ).
Importantly, in 1988, the Legislature added the "best interests" requirement to
the statute, as well as the requirement that reasonable efforts be made "to
prevent or eliminate the need for removal of the child from the home" (L 1988,
ch 478, § 5). [FN10] These changes were apparently necessary to comport with
federal requirements under Title IV-E of the Social Security Act (42 USC §§
670-679a), which mandated that federal "foster care maintenance payments may be
made on behalf of otherwise eligible children who were removed from the home of
a specified relative pursuant to a voluntary placement agreement, or as the
result of a 'judicial determination to the effect that continuation therein
would be contrary to the welfare of the child and ... that reasonable efforts
[to prevent the need for removal] have been made' " (Policy Interpretation
Question of the United States Department of Health and Human Services, May 3,
1985, Bill Jacket, L 1988, ch 478, at 32-33). The measures "ensure[d] that
children involved in the early stages of child protective proceedings and their
families receive appropriate services to prevent the children's removal from
their homes whenever possible" (Mem from Cesar A. Perales to Evan A. Davis,
Counsel to the Governor, July 27, 1988, Bill Jacket, L 1988, ch 478, at 14).
FN10. The Legislature added these provisions to sections 1022 and 1028 as well.
By contrast, the City at the time took the position that
"the mixing of the standards 'best interest of the child' and 'imminent risk' is
confusing. It makes no sense for a court to determine as part of an 'imminent
risk' decision, what is in the 'best interest of the child.' If the child is in
'imminent risk', his/her 'best interest' is removal from the home. A 'best
interest' determination is more appropriately made after an investigation and a
report have been completed and all the facts are available" (Letter from
Legislative Representative James Brennan, The City of New York Office of the
Mayor to Governor Mario M. Cuomo, July 27, 1988, Bill Jacket, L 1988, ch 478, at
23).
In this litigation, the City posits that the "best interests" determination is
part of the Family Court's conclusion that there is imminent risk warranting
removal, and concedes that whether a child will be harmed by the removal is a
relevant consideration. The City thus recognizes that the questions facing a
Family Court judge in the removal context are extraordinarily complex. As the
Circuit Court observed, "it could be argued that the exigencies of the moment
that threaten the welfare of a child justify removal. On the other hand, a
blanket presumption in favor of removal may not fairly capture the nuances of
each family situation" (344 F3d at 174).
The plain language of the section and the legislative history supporting it
establish that a blanket presumption favoring removal was never intended. The
court must do more than identify the existence of a risk of serious harm.
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's best interests.
Additionally, the court must specifically consider whether imminent risk to the
child might be eliminated by other means, such as issuing a temporary order of
protection or providing services to the victim (Family Ct Act § 1027[b] [iv] ).
The Committee Bill Memorandum supporting this legislation explains the intent to
address the situation "[w]here one parent is abusive but the child may safely
reside at home with the other parent, the abuser should be removed. This will
spare children the trauma of removal and placement in foster care" (Mem of
Children and Families Standing Comm, Bill Jacket, L 1989, ch 727, at 7).
These legislative concerns were met, for example, in Matter of Naomi R. (296
A.D.2d 503 [2d Dept 2002] ), where, following a hearing pursuant to section
1027, Family Court issued a temporary order of protection against a father,
excluding him from the home, on the ground that he allegedly sexually abused one
of his four children. Evidence established that the father's return to the home,
even under the mother's supervision, would present an imminent risk to the
health and safety of all of the children. Thus, pending a full fact-finding
hearing, Family Court took the step of maintaining the integrity of the family
unit and instead removed the abuser.
Ex Parte Removal by Court Order
If the agency believes that there is insufficient time to file a petition, the
next step on the continuum should not be emergency removal, but ex parte removal
by court order (see e.g. Nassau County Dept. of Social Servs. on behalf of Dante
M. v. Denise J., 87 N.Y.2d 73 [1995] ). Section 1022 of the Family Court Act
provides that the court may enter an order directing the temporary removal of a
child from home before the filing of a petition if three factors are met.
First, the parent must be absent or, if present, must have been asked and
refused to consent to temporary removal of the child and must have been informed
of an intent to apply for an order. Second, the child must appear to suffer from
abuse or neglect of a parent or other person legally responsible for the child's
care to the extent that immediate removal is necessary to avoid imminent danger
to the child's life or health. Third, there must be insufficient time to file a
petition and hold a preliminary hearing.
Just as in a section 1027 inquiry, the court must consider whether continuation
in the child's home would be contrary to the best interests of the child;
whether reasonable efforts were made prior to prevent or eliminate the need for
removal from the home; and whether imminent risk to the child would be
eliminated by the issuance of a temporary order of protection directing the
removal of the person from the child's residence. [FN11] Here, the court must
engage in a fact-finding inquiry into whether the child is at risk and appears
to suffer from neglect.
FN11. The order must state the court's findings concerning the necessity of
removal, whether respondent was present at the hearing and what notice was given.
The Practice Commentaries suggest that section 1022 may be unfamiliar, or seem
unnecessary, to those in practice in New York City, "where it is common to take
emergency protective action without prior court review" (Besharov, Practice
Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 1022 at 10,
[1999 ed] ). If, as the District Court's findings suggest, this was done in
cases where a court order could be obtained, the practice contravenes the
statute. Section 1022 ensures that in most urgent situations, there will be
judicial oversight in order to prevent well-meaning but misguided removals that
may harm the child more than help. As the comment to the predecessor statute
stated, "this section ... [is] designed to avoid a premature removal of a child
from his home by establishing a procedure for early judicial determination of
urgent need" (Committee Comments, Family Ct Act repealed § 322 [1963] ).
Whether analyzing a removal application under section 1027 or 1022, or an
application for a child's return under section 1028, a court must engage in a
balancing test of the imminent risk with the best interests of the child and,
where appropriate, the reasonable efforts made to avoid removal or continuing
removal. The term "safer course" (see e.g. Matter of Kimberly H., 242 A.D.2d 35
[1st Dept 1998]; Matter of Tantalyn TT., 115 A.D.2d 799 [3d Dept 1985] ) should
not be used to mask a dearth of evidence or as a watered-down, impermissible
presumption.
Emergency Removal Without Court Order
Finally, section 1024 provides for emergency removals without a court order. The
section permits removal without a court order and without consent of the parent
if there is reasonable cause to believe that the child is in such urgent
circumstance or condition that continuing in the home or care of the parent
presents an imminent danger to the child's life or health, and there is not
enough time to apply for an order under section 1022 (Family Ct Act § 1024[a];
see generally Matter of Joseph DD., 300 A.D.2d 760, 761 n 1 [3d Dept 2002]
[noting that removal under such emergency circumstances requires the filing of
an Article 10 petition "forthwith" and prompt court review of the nonjudicial
decision pursuant to Family Ct Act § 1026(c) and § 1028]; see also Matter of
Karla V., 278 A.D.2d 159 [1st Dept 2000] ). Thus, emergency removal is
appropriate where the danger is so immediate, so urgent that the child's life or
safety will be at risk before an ex parte order can be obtained. The standard
obviously is a stringent one.
Section 1024 establishes an objective test, whether the child is in such
circumstance or condition that remaining in the home presents imminent danger to
life or health. [FN12] In construing "imminent danger" under section 1024, it
has been held that whether a child is in "imminent danger" is necessarily a
fact-intensive determination. "It is not required that the child be injured in
the presence of a caseworker nor is it necessary for the alleged abuser to be
present at the time the child is taken from the home. It is sufficient if the
officials have persuasive evidence of serious ongoing abuse and, based upon the
best investigation reasonably possible under the circumstances, have reason to
fear imminent recurrence" (Gottlieb v. County of Orange, 871 F Supp 625, 628-629
[SD N.Y.1994], citing Robison v. Via, 821 F.2d 913, 922 [2d Cir1987] ). The
Gottlieb court added that, "[s]ince this evidence is the basis for removal of a
child, it should be as reliable and thoroughly examined as possible to avoid
unnecessary harm to the family unit" (871 F Supp at 629).
FN12. Section 1022 also requires that the child be brought immediately to a
social services department, that the agency make every reasonable effort to
inform the parent where the child is and that the
agency give written notice to the parent of the right to apply to family court
for return of the child.
Section 1024 concerns, moreover, only the very grave circumstance of danger to
life or health. While we cannot say, for all future time, that the possibility
can never exist, in the case of emotional injury--or, even more remotely, the
risk of emotional injury--caused by witnessing domestic violence, it must be a
rare circumstance in which the time would be so fleeting and the danger so great
that emergency removal would be warranted. [FN13]
FN13. Section 1026 permits the return of a child home, without court order, in a
case involving neglect, when an agency determines in its discretion that there
is no imminent risk to the child's health in so doing (Family Ct Act § 1026[a],
[b] ). If the agency does not return the child for any reason, the agency must
file a petition forthwith, or within three days if good cause is shown (Family
Ct Act § 1026[c] ).
Certified Question No. 3: Process
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, that presumption would comport with Stanley v.
Illinois (405 U.S. 645 [1972] [recognizing a father's procedural due process
interest in an individualized determination of fitness] ). 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.
The Circuit Court points to two cases in which removals occurred based on
domestic violence without corresponding expert testimony on the appropriateness
of removal in the particular circumstance (Matter of Carlos M., 293 A.D.2d 617
[2d Dept 2002]; Matter of Lonell J., Jr., 242 A.D.2d 58 [1st Dept 1998] ). Both
cases were reviewed on the issue whether there was sufficient evidence to
support a finding of neglect. In Carlos M., the evidence showed a 12-year
history of domestic violence between the parents which was not only witnessed by
the children but also often actually spurred their intervention. In Lonell J.,
Jr., caseworkers testified at a fact-finding hearing about the domestic violence
perpetrated by the children's father against their mother, as well as the
unsanitary condition of the home and the children's poor health.
We do not read Carlos M. or Lonell J., Jr. as supportive of a presumption that
if a child has witnessed domestic violence, the child has been harmed and
removal is appropriate. That presumption would be impermissible. In each case,
multiple factors formed the basis for intervention and determinations of
neglect. As the First Department concluded in Lonell J., Jr., moreover, "nothing
in section 1012 itself requires expert testimony, as opposed to other convincing
evidence of neglect" (242 A.D.2d at 61). Indeed, under section 1046(a) (viii),
which sets forth the evidentiary standards for abuse and neglect hearings,
competent expert testimony on a child's emotional condition may be heard. The
Lonell J., Jr. court expressed concern that while older children can communicate
with a psychological expert about the effects of domestic violence on their
emotional state, much younger children often cannot (242 A.D.2d at 62). The
court believed that "[t]o require expert testimony of this type in the latter
situation would be tantamount to refusing to protect the most vulnerable and
impressionable children. While violence between parents adversely affects all
children, younger children in particular are most likely to suffer from
psychosomatic illnesses and arrested development" (id.).
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" (Family Ct Act § 1012[h] ). Yet nothing in the plain language of Article
10 requires such testimony. The tragic reality is, as the facts of Lonell J.,
Jr. 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.
Judges SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and SMITH concur.
N.Y.,2004.
Nicholason v. Scoppetta
2004 WL 2381177 (N.Y.)
END OF DOCUMENT
Case #2:
| Matter of Linda J. v Nakisha P. |
| 2004 NYSlipOp 06345 |
| August 12, 2004 |
| Appellate Division, First Department |
| As corrected through Wednesday, October 6, 2004 |
In the Matter of Linda J., Respondent,
v
Nakisha P., Appellant, and Administration for Children's Services, Respondent. |
—[*1]
Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about June 4, 2002, insofar as it granted custody of the subject child to the child's paternal grandmother, unanimously reversed, on the law, without costs, and the matter remanded for a dispositional hearing.
This child custody proceeding arose out of an incident in which respondent's four-year-old son, Lamar, was locked in a bedroom while respondent visited her boyfriend, who resided in the same apartment building. The child's maternal aunt and grandmother were present in the apartment with him but did not have a key to the dead-bolt lock.
As the result of a neglect petition filed by the Commissioner of Social Services, Family Court conducted a hearing, after which it awarded permanent custody of the child to petitioner, his paternal grandmother. Finding that respondent had engaged in neglect by locking the child in the bedroom as a form of punishment and that the child's maternal grandmother had failed to take steps to ameliorate the situation, the court proceeded to entertain petitioner's custody petition. Based on evidence presented during the neglect hearing and without taking testimony from respondent regarding her ability to care for the child and to provide a good home environment, parental guidance and support for his emotional and intellectual development, the court awarded custody to petitioner.
In awarding custody to petitioner pursuant to Family Court Act article 6, the court never [*2]reached the question of disposition pursuant to Family Court Act article 10. The child cannot be placed with his grandmother without a hearing to determine whether such a disposition would be in his best interests, and such placement is limited to an initial period of one year (Family Ct Act § 1052 [a]; § 1055; Matter of David S., 221 AD2d 241 [1995]). Furthermore, petitioner did not make the necessary showing to rebut the presumption of custody in favor of a parent and direct inquiry to the child's best interests (see Matter of McNeill v Ressel, 258 AD2d 64 [1999], appeal dismissed 94 NY2d 838 [1999]). It is petitioner's burden to demonstrate that respondent has relinquished her superior right to custody due to inadequate guardianship (see Matter of Joseph S. v Michelle R.F., 3 AD3d 446 [2004]). Finally, in view of the controverted allegations concerning the extent to which the child was punished by confining him to the locked bedroom, it was error to issue a custody order without the benefit of a full hearing (see Matter of Hudgins v Goodley, 301 AD2d 524 [2003]). Concur—Tom, J.P., Ellerin, Williams and Marlow, JJ.
