Article 10 neglect and abuse cases have historically comprised close to 50 % of all cases heard in the Family Court. In the representative year 2015, there were well over 8,500 abuse or neglect reported in New York. Nearly 60% were substantiated by the assigned child protective agency (in NYC the Administration for Childrens’ Services or “ACS”).
The most common types of alleged abuse reported was physical abuse. Most people accused of child abuse are between 18 and 44, years old. Most alleged victims are infants or very young children below the age of 5.
African American children are nearly 3 times as likely to be abused or neglected as white children. Neglect of children is also highly correlated with poverty and single parent homes. around 90% of abuse and neglect is alleged to have happened in the home. There is a wealth of high level evidence that abuse and neglect and abuse often has long-term negative consequences on children, including physical problems, mental health problems, and all kinds of behavioral problems.
In New York City the child protective agency has struggled with high case volumes and big turnovers in the actual case workers who go out in the field. The agency has been criticized as going through cycles where supervision becomes increasingly lax over time, until there is a child fatality case that makes newspaper headlines, at which time the agency will overreact by removing more children from their homes.
The agency has attempted to address various criticism by increasing the training and significantly increasing the salaries of the front line case workers, who have the thankless job of going into dangerous neighborhoods and accompanying the police to do removals. When criticism becomes particularly intense, the agency has renamed itself many times over the years. The Administration for Childrens Serivces used to be called the Child Welfare Administration, and the Bureau of Childrens’ Services.
ACS Investigations & Indicated Cases
Most ACS investigations occur as a result of someone making a phone call to the Child Abuse And Neglect Hotline. The Hotline will do an initial screening of the call and may decide not to take action. The hotline accepts anonymous calls, and many cases from anonymous callers are investigated and end up in Court.
ACS keeps a record of all filings and indicated cases against someone. It also has a liaison worker at all of the public hospitals who is alert for suspicious injuries or illnesses of children and hospitalizations of children, as well as births by women with prior ACS history. When the mothers with extensive histories with ACS give birth to a new child, ACS may file a new neglect case and stop the mother from taking the child home.
In New York State there some people are “mandated reporters” who have a duty to report suspected child neglect and abuse. These mandated reporters include doctors, social workers, police, teachers, and others.
In the typical situation, upon receiving an “ORT” or oral report transmission, an acs worker will be assigned to investigate, unless there is already a worker who is assigned to the household. The worker will visit the home, or attempt to visit the home and will interview the person or persons accused in the acs report, as well as other relevant people, such as police detectives, doctors, teachers, and witnesses.
The investigating worker will also observe if there are any safety issues in the home such as peeling paint, electrical problems, and unsanitary conditions. If the child or children are old enough to be interviewed the worker will interview or attempt to interview, the subject child or children, and may also interview siblings. or other people who reside in the home.
Once the case is officially opened the agency will send written notice to the subject or subjects of the investigation that a case has been opened against them. The agency has 60 days to investigate and make a determination. By the end of the 60 day period the agency has to decide whether the case will become “indicated” or if it will be “unfounded”. The agency is required to send written notice of its decision. to the subject of the indicated report.
Many indicated cases do not result in court action. In many situations, the alleged subject will be given referrals for services. If the case is considered to be serious enough to constitute a real risk to the safety of children, the worker may, likely after consulting with a supervisor, refer the case to the legal department where a determination will be made as to whether or not to file a case in the Family Court for neglect or abuse.
Persons who have cases indicated against them can challenge them through a fairly long and drawn out process of administrative review and fair hearings. People have this right whether or not a case has been filed in court, however , once a case has been filed, the Family Court Judge will rarely give much weight to the decision of an administrative judge who decides a fair hearing. Also if there is a finding of neglect it is impossible to get rid of the indicated case.
When the allegations are considered by ACS to be serious enough to require a case to be filed in court, but not so serious that ACS believes that the child or children must be removed from the home, the case is considered to be a “supervision case”. The agency wants to supervise the home, make referrals for services, and provide assistance to the parent or parents to help them ameliorate the issue or issues. Typical situations are when there are allegations of educational neglect or a “dirty home” .
If the parent or parents cooperate, these cases may be withdrawn or may result in an ‘ACD” which means that after a further period of cooperation, the case will be automatically dismissed and sealed.
Removal Cases, 1027 and 1028 Hearings
Sometimes when the case is first heard in Court, the child or children have already been removed by ACS. This is called an “emergency removal”. In other situations the children have not yet been removed. On this first court appearance if the parents or other subjects show up, they will be told that they have a right to counsel. In the City of New York in over 90 % of the time the subjects (now known as “respondents”) will be assigned free lawyers.
The lawyer or lawyers who represent parents have two options. They can request an immediate 1027 hearing to stop the removal right away, or can request a 1028 hearing, which is usually scheduled a few days or up to a week or two later. This gives the parents’ attorneys time to investigate and prepare. If they opt for the immediate 1027 hearing and lose, the may lose their rights to have a 1028 hearing.
If the evidence appears to be very strong, the attorney or attorneys for the parents can also reserve their rights to a 1028 hearing for a future time. This is typically done to give the parents time to engage in services.
The legal standard for 1027 and 1028 is “imminent risk”, a high standard, but in practice it is are for a parent to prevail at these hearings. Some lawyers believe that holding a 1028 hearing is risky because hearsay is admissible at the hearing, and the same judge who presides over the hearing and hears all the evidence, including evidence that may be inadmissible at trial, will almost always preside over the trial that determines whether or not the parent is guilty of child neglect or abuse.
If the parent loses the 1028 hearing he or she can apply to the appellate division for a stay of the Family Court order of removal. The attorney for the child will be allowed to participate in a meeting in chambers with an appellate judge, and this judge will typically give a great deal of weight to the position of the attorney for the child. Stay applications are rarely successful unless they have the support of the attorney for the child.
When children are removed from parents they either go into foster care or they are placed with relatives or non-relatives who have a close relationship with the child or children. It is almost always better for the parents if the child or children are placed with relaties than if they are placed in foster care.
While the case is going on, if the child or children are not returned to a parent, the parent will almost always have visitation time. In most situations where the child has been removed visitation will be initially supervised, but can be expanded to unsupervised visits if the parents are deemed to have made progress.
Fact Finding Hearing (trials) & Admissions (pleas)
Most cases result in either fact finding hearings or admissions. Some cases are withdrawn, or are resolved by ACD’s. A small number of cases are dismissed pursuant to Motion practice.
The respondent or respondents is entitled to discovery on Article 10 cases, but usually all they get pursuant to discovery are the case notes. Every case worker who goes into the file is required to take written contemporaneous notes of significant events in the case, including home visits, referrals, etc. These notes may be made in notebooks but are inputted in the “connections” computerized system maintained by ACS.
The case notes can also include entries made by the case worker’s supervisor, other case workers, and various ACS employees who are involved in the case.
If ACS has photographs, videos, drug test results, police reports, or other documents in its posession which are relevant , the parent’s attorneys are entitled to obtain copies through discovery.
Trials, called fact finding hearings in Family Court, are heard by a Family Court Judge. there are no juries in Family Court. The legal standard for neglect and abuse cases is “preponderance of the evidence”, which means the evidence supports a conclusion that it is more likely than not that the respondent committed the act or acts alleged. Parents lose upward of 90 % of all fact findings in neglect or abuse cases.
If the Judge makes a finding of abuse or neglect he or she is required to make written findings. Respondents have a right to appeal the fact finding order. They can put in appeal papers immediately or can wait for the next stage in the case, called “disposition”.
Findings of abuse as opposed to neglect are considered to be much more serious and make it much more difficult to convince the court to return the child or children to parents.
There are many reasons why a parent’s attorney may suggest that the parent make an admission to neglect rather than going to trial. First of all, if the agency has charged the parent with abuse, it may be possible to settle the case with an admission to neglect only.
Sometimes the agency agrees to “parole” the child back to the parent with supervision of the home by ACS as part of a plea agreement. However all plea agreements are subject to approval by the Judge, who is not bound to any agreement made by ACS.
Parents who choose to go to trial have another dilemma. Usually, they will be offered services, and if they accept certain services, such as drug treatment programs or batterer’s programs, they would in effect be admitting to the charges against them. But if they don’t do the services, it may make it much more difficult for them to get their children returned to them.
Trials in Family Court can take a long time, sometimes even years, and if the children are in foster care and the parents are refusing services for too long, they may end up having their parental rights terminated.
Some attorneys who have a lot of experience in article 10 cases believe that, because the odds of winning are so small, it makes a lot more sense for their clients to make an admission, and concentrate on engaging in services. This will of course depend on the strength of the agency’s case. On the other hand, with some clients, if the attorney suggests a plea this destroys the client’s faith in the attorney and can create conflict between them.
The 1051(a) “plea”
If the client is absolutely convinced that he or she did nothing wrong and that all the allegations are untrue, it is sometimes possible to resolve the case if the client is willing to accept a finding of neglect without making any admissions. This agreement would have to be on consent of ACS , the attorney for the child, and the Court. Some judges are hostile to these resolutions, but can sometimes make exceptions when there are serious criminal charges outstanding, and by making the admission the respondent would likely go to jail as a result.
Some parents’ attorneys who have relatively little experience will sometimes make the mistake of agreeing, without any negotiation, to a 1051(a) agreement as to all the allegations in the petition. In my opinion, this borders on malpractice.
Dispositional Stage- Dispositional Hearings
Once there has been a finding of neglect or abuse, the case proceeds to the dispositional stage. The Court has already decided the issue of neglect, the only remaining issue is to decide what to do about the children, i.e. whether they can be returned to the parent or parents, if they will remain in foster care , or if they will be placed on a long term or even permanent basis with a “fit and wiling relative”.
Recent changes to the statute define relatives much quite broadly, to include close friends, neighbors, or other persons with whom the child or children have a close connection.
Unless there is a consent of everyone, including the judge, there will have to be a dispositional hearing. Prominent in the hearing will be the agency’s dispositional report with recommendations. Other documentary evidence can be introduced by any party at the dispositional hearing, since hearsay is admissible.
Sometimes relatives will intervene in the dispositional hearing by filing custody petitions. Their custody petitions will be consolidated with the neglect and abuse case and will be tried together, although there are evidentiary complications as hearsay is not admissible in a custody trial.
From the perspective of the parent or parents it is imperative, if the children are still in foster care, to either get them back or at least get them moved to a sympathetic relative because, once the children have been placed in foster care, under the ASFA statute there will come a time when the agency is required to file termination of rights proceedings.
Statistics show that in New York, roughly half of children who are in foster care are either returned to a parent or placed with a relative, while the other half are eventually adopted.
The court is required to make findings of fact in its dispositional order. The dispositional order can be appealed, and the appeal can also include challenging the fact-finding orders.
However, orders made on consent cannot be appeale.
If the child or children remains in foster care after the disposition, the case continues with period permanency hearings. When ASFA was passed, foster care agencies quasi-independent contractors of ACS, were required to do various things in order to qualify for reimbursement, and were subject to audit and disallowance of funding.
The permanency hearings were originally designed to make sure that the foster care agencies did what they were supposed to do. At these hearings the judge will be asked to make findings that the agency has used “reasonable efforts” to effect the permanency plan, and will be asked to approve the plan. The choice of plans boils down to either “return to parent’, adoption, placement with a fit and willing relative, or independent living.
When the permanency hearings were first instituted, it was thought by some experienced practitioners that these would be full blown trials, but typically they are relatively short court appearances with the permanency report and a few documents introduced in evidence, along with testimony of the case worker and sometimes one of more parents. It is usually impossible to successful appeal a permanency order because the issue will likely be moot because another permanency hearing will have occurred by the time the case gets before the appellate court.