Parents, caregivers and guardians may be accused of abuse or neglect of a child(ren) under the age of 18 years.
Abuse is where a child is seriously harmed or injured, either physically, mentally or emotionally or put in a situation where the child could have been seriously injured. Neglect, however, is where the parent, caregiver or guardian fails to care for the child and the child is harmed physically, mentally or emotionally or is in danger of such harm. Neglect also arises where the parent, caregiver or guardian fails to provide basic necessities, such as food, shelter, medical attention or education.
The Administration for Children's Services ("ACS") or Child Protective Service ("CPS") are the agencies that investigates abuse and neglect. They receive reports from the New York State Central Registry ("SCR"), which is the entity that takes reports from anyone who reports abuse or neglect. There are "mandated" reporters, such as doctors, teachers, police and social workers, who must report abuse or neglect. As a result of its investigation ACS or CPS may offer the family services; file a petition in Family Court; remove the children from the home and place them with family or in fostercare; and/or close its investigation. Either way a report filed with SCR will remain on the parent/guardian's record with the agency. The severity of the allegations and the result of its investigation determine if ACS or CPS will remove the children from the home before filing a petition in Family Court.
If an abuse/neglect proceeding has been commenced in Family Court, all parents will be put on notice of the proceeding. If the child was removed from the home, ACS or CPS will attempt to locate suitable relatives or family friends to place the children with. ACS or CPS may choose not to remove the children but require the family to undergo services, such as therapy/counseling, anger management, domestic violence classes, etc. However, if there is a reasonable cause to believe that there has been abuse or neglect, after initial hearings referred to as "1027" or "1028", the Court then decides if the child should be removed ("remanded"), placed in foster care (kinship or agency) or returned to the home with or without ACS supervision. An attorney will be appointed to represent the child(ren), referred to as the law guardian. Also, an Order of Protection may be imposed in cases of sexual and/or physical violence.
The Fact-Finding Stage:
During the pendency of the abuse/neglect case, ACS or CPS may require the parent(s) or legal guardians to complete services before the child is returned to the home. Also, a steady visitation schedule will be devised for the parent(s) or legal guardian (and grandparents in some cases), either supervised by the agency, fostercare worker or relative or unsupervised, depending on the allegations, the resources and the progress of services completion. If the case is not dismissed or settled, the matter will go to trial or fact-finding. At the fact-finding, testimony will be heard, documents introduced and rulings made. Although there is no trial by jury in these cases, all parties are entitled to be represented by an attorney. The outcome of the fact-finding can result in no "finding" of abuse or neglect, a "finding" of abuse and neglect or a finding of abuse or neglect. A finding of either will result in an "indicated" result on the parent's SCR record, which remains for a period of ten years. Some cases do not make it to fact-finding but are settled between the parties, the attorneys, ACS or CPS and the court.
Dispositional Stage:
If the case is settled or there is a finding of abuse or neglect, there is a hearing to determine what will happen with the children. At the hearing, the judge receives evidence to help her/him decide what should happen to children for up to the next year. The judge can also order the parent(s) and/or guardian to complete certain programs and/or services and to refrain from doing certain things. The judge may also order that the children complete services. The possible outcomes of the hearing are 1) the children can go home (if they were removed and not yet returned home) 2) the children may go home or stay at home with ACS or CPS supervision 3) the children may go home or stay home on the condition that the neglectful/abusive parent leaves the home 4) the children can be placed in "kinship" fostercare or agency fostercare home for up to a one year period or 5) the children can be placed in another person's home (non-fostercare) for up to a one year period.
Abuse/Neglect Cases and Child Support/Child Visitation and Child Custody:
When an abuse/neglect case is pending, the parents are still entitled to child visitation. If the child(ren) are placed in another's home or in fostercare, the parents are entitled to a regular and consistent visitation schedule, either at the agency, in the home of the fostercare provider or at the parent(s)' home. Grandparents who had a previous relationship with the children are also entitled to child visitation. Non-custodial parents are still obligated to pay child support while an abuse/neglect case is pending. Grandparents may also petition the court for child custody while an abuse/neglect case is pending. However, since the child(ren) are in the "custody" of ACS or CPS, approval is required from both the agency and sometimes the court.
Abuse/neglect cases are highly sensitive and complex cases, an experienced attorney should represent parents and guardians in most, if not all, instances.
Contact our office for a free consultation.