Can 432 children be removed in New York without “actual” proof of child abuse?  Well that depends.  In Texas history, in U.S. history for that matter, it has never occurred.  In today’s climate where children are still suffering immeasurable harm and irreparable damage as a result of physical, sexual and emotional abuse, the states’ agencies have a very challenging responsibility even when abuse is a mere suspicion.  Most, if not all, players in the field of child protective services are encouraged to err on the side of caution.  This means that even a telephone call from an anonymous caller alleging any sort of child abuse will usually result in child protective services taking action.
          However, the question is not if the agency should act.  The issue becomes how far should the authorities go and if the means justifies the ends.  In New York, as in many other states, the standard for “emergency” removal is if the children are in “imminent danger” or “serious harm” to their life or health if they are to remain in the home.  There is a mandated procedure that Child Protective Services (“CPS”) or Administration for Children’s Services (“ACS”) must follow when there are reports of child abuse/neglect.  The procedure is that once the agency receives a report of child abuse/neglect, they have 24 hours to investigate.  Not all reports are true, since it is not only teachers, doctors, social workers, etc. that report alleged abuse.  Family members, neighbors, etc. also report allegations of abuse and their intentions are necessarily the protection of the child.  In that, the agency must go to the home, speak to the parents (or persons legally responsible), the children, school personnel, doctors, mental health professionals, etc. in an effort to determine if there is any merit to the allegations.  If the agency is convinced that there was in fact child abuse/neglect, then they can either a)  offer the family services and allow the child to remain in the home; b)  they can have the parent voluntarily place the child with a relative or foster care until the circumstances warrants a return to the home; c)  they can have the parent get an order of protection, in domestic violence cases, against another and allow the child to remain in the home; d)  they can remove the child and then file a petition in court or e)  they can file a petition in court and then ask for removal.
          Here we will discuss the most extreme case, where the child is immediately removed from the home, either before or after filing of the petition.  Before the child is removed the agency must make every reasonable effort to avoid removal, which is why in some instances services are first offered to the family and then the child is removed.  If the judge is convinced that there is “imminent risk” if the child remains with the parents or persons legally responsible, then he/she may order removal.  There are several factors the judge will consider when making this determination.  These factors include: history of the family, prior allegations of abuse/neglect, criminal history of either parent, just to name a few.  There are instances, however, where the child is removed from the home before the judge even hears the allegations.  In this scenario, the agency must file a petition in court within 24 hours of removal and provide written notice to the parents to appear in court on the next business day.  It is at this point that the judge will determine if removal was necessary, or if “imminent danger” existed warranting the removal. 
          Once the child is removed, the parent or person legally responsible has the right to appear in court and request a 1028 hearing.  The purpose of this hearing is to have the agency present the evidence they have justifying the removal.  The parents will then have the opportunity to challenge the evidence and make a request that the child be returned.  If the judge is not convinced by the evidence presented that the child is in imminent danger, he/she can direct that the child be returned to the home while the case itself proceeds to either trial or settlement.  As a precautionary measure, however, the judge can order that ACS monitor the family while the child is at home, which typically requires a caseworker working with the family to ensure that services are offered and complied with.

          The 1028 is the crucial moment for determining if emergency removal was justified.  At this hearing, the caseworkers, mental health professionals, parents, children may all be called as witnesses to justify removal or discredit the allegations of abuse or neglect.  In each case, the witnesses bearing the most “credible” evidence supporting the abuse allegations would be the ones testifying.  The burden is on the agency to prove by “preponderance of the evidence” that child abuse or neglect did in fact occur.  And although third-party or “hearsay” testimony is not admissible in court for its truth, hearsay is admissible in child abuse/neglect cases for the purposes of proving “imminent danger”.  Consequently, someone with firsthand knowledge or who was given firsthand knowledge can testify on behalf of the agency, about the occurrence of abuse/neglect for at this stage.
          So in essence, if the removal of 432 children had occurred in New York, based on an anonymous tip via telephone, unless someone else can testify that based on their own knowledge those allegations have merit, there could be no justification for the court not returning the children. A lot of what a judge decides to do is determined by the social or legal climate surrounding the case.  What the Texas authorities based their finding on was the fact that there were several young girls who had children, which infers that they were either physically and/or statutorily raped.  However, that is not necessarily the case.  Here, for instance, if the father of that child is not older than 17 years or the young mother was married with their parents’ consent, then the presumption of rape, constituting child abuse, can be rebutted.  The difficulty is that in sexual abuse cases, the children are typically the only witnesses.  Thus, any statements made by the child out of court may be admissible, even if it is not “corroborated” by other supporting evidence, for the purpose of removal.  Corroboration evidence may be provided in different forms, expert testimony of those who conducted interviews or behavioral assessments of the alleged victims or medical testimony, both were used in the Texas case.  As an aside, the Fourth Amendment protection against unreasonable search and seizure does not apply in Family Court, warrantless searches or lack of probable cause does not invalidate the removal.

         As an advocate, attorney and law guardian I do ethically, morally and professionally believe that the authorities must err on the side of caution in child abuse cases.   However, I also believe that individuals’ rights need to be regarded and not infringed upon without due process. The children and their families should have been afforded a case by case analysis instead of being subjected to a collective effort by the agency.

          Feel free to contact my office for a free consultation to discuss your child abuse/neglect case or any other family law matter.