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Court of Appeals to Rule on Child Witnessing of Domestic Violence

June 1, 2004

Author: Amy Schwartz-Wallace

Nicholson v. Williams, 203 F. Supp. 2d 153 (E.D.N.Y. 2002) questions certified sub nom. Nicholson v. Scoppetta, 344 F. 3rd 154 (2nd Cir. 2003), certified questions accepted by the New York State Court of Appeals, 1 N.Y. 3rd 538 (Nov. 25, 2003) is a federal civil rights class action suit filed on behalf of battered mothers and their children challenging the constitutionality of New York City's child protection practices in cases involving domestic violence.

Commenced in 2000, Nicholson is the first case in the country to make such claims, and as such, this landmark litigation has received extensive media attention and close monitoring by law guardians, attorneys, child welfare advocates, domestic violence programs, courts, and lawmakers throughout the state and nationally. The lead attorneys for the plaintiffs include Carolyn Kubitschek and David Lansner from the private law firm of Lansner & Kubitschek, as well as Jill Zuccardy from Sanctuary for Families' Center for Battered Women's Legal Services.

In Nicholson, ten plaintiff mothers and their children sued Administration for Children's Services (ACS), NYC's child welfare agency, alleging that the practice of removing children (often ex parte and without court order) solely on the grounds that the mothers were targets of abuse was unconstitutional. The families claimed that pursuant to agency practice, a mother's status as a victim of domestic violence and the children's exposure to abuse was considered virtually per se neglect under Article 10. Filed under 42 USC §1983, the plaintiffs argued that the City's actions not only punished and harmed children and their mothers, but also infringed upon several key constitutional rights, including the right to familial integrity and the right to live free of governmental interference.

Following nearly two months of trial in 2001, United States District Judge Jack B. Weinstein issued a comprehensive and scathing decision. The Court made six specific findings regarding the City's child welfare policies and practices: (1) ACS regularly alleged and indicated neglect against battered mothers; (2) ACS rarely held abusers accountable for their violence; (3) ACS failed to offer adequate preventative services to mothers before prosecuting them or removing their children; (4) ACS regularly and unnecessarily separated battered mothers and children; (5) ACS failed to adequately train its employees regarding domestic violence; and (6) ACS's written policies provided insufficient and inappropriate guidance to its employees.

As to the constitutional questions, the Court found the practices infringed upon the Fourteenth Amendment liberty right to familial integrity without substantive and procedural due process, as well as the children's Fourth Amendment right to be free from unreasonable search and seizure. The Court also determined the actions violated the plaintiff's Ninth Amendment's right to integrity of the family unity, the Thirteenth Amendment's prohibition against slavery and involuntary servitude, and the Nineteenth Amendment's prohibitions regarding sex discrimination. Judge Weinstein issued a remedial preliminary injunction against ACS and the City to enjoin these practices and, further imposed a variety of procedural, consultation, training, and reporting requirements on ACS and the City. The defendants appealed the District Court's ruling to the Second Circuit.

In September 2003, the federal Appeals Court generally upheld the lower court's decision, but was unable to issue a final ruling. While the ACS removal policies could be considered unconstitutional , the federal Appellate Court determined the assistance of New York State Court of Appeals was necessary to interpret key questions of child welfare law in the Family Court Act (FCA). The Second Circuit certified three questions:

  1. Does the definition of "neglected child" under FCA §1012(f),(h) include instances in which the sole allegation of neglect is that the caretaker or parent allows the child to witness domestic abuse against the caretaker?
  2. Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or caretaker constitute "danger" or "risk" to the child's "life or health," as those terms are defined in FCA §§1022, 1024, 1026-1028?
  3. Does the fact that the child witnessed such abuse suffice to demonstrate that "removal is necessary" in FCA §§1022, 1024, 1027 or that "removal was in the child's best interests" in §§1028, 1052(b)(i)(A) or must the child protective agency offer additional particularized evidence to justify removal?

On November 25, 2003, the New York's highest court accepted the questions. Appellate briefs addressing these questions were filed by the defendants in February 2004, by the plaintiff mothers and children in April, and, most recently, by the various amici in May. It is expected that the case will be argued in Albany on September 7, 2004.

Although all four appellate divisions have confronted similar questions about the intersection of neglect, child witnessing and domestic violence, case law has been inconsistent. This will be the first opportunity for the Court of Appeals to rule on these controversial issues. In light of the voluminous record associated with Nicholson, the wealth of information will undoubtedly assist the Court in making an informed decision on the questions presented. Doubtless, this ruling will have a profound impact on child welfare policy throughout the state, and likely, nationally.

Judge Weinstein's preliminary injunction was scheduled to terminate on January 31, 2004. However, in light of the pending state and court rulings, the injunction was extended by the District Court on December 9, 2003 and will continue through July 2004 with the caveat that the parties may apply for an earlier modification, extension, or termination. (294 F.Supp. 2d 369) It is anticipated that the Second Circuit will make its final ruling following receipt of the state court's interpretation of the law.


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