First Department Overturns Family Court Finding of Nelect Against Victim of Domestic Violence

May 1, 2003

Author: Amy Schwartz

In a decision issued on February 25, 2003, the First Department unanimously overturned a ruling by New York County Family Court Judge Susan Larabee which held that a mother, Michele G., had neglected her three children because at least one of the children was present during an isolated incident of domestic violence perpetrated by the mother's ex-boyfriend. The case, In Re H/R Children, 2003 WL 462533 (N.Y.A.D. 1 Dept.), is a notable precedent for non-offending, battered women across the state who often face the likelihood of indicated child protective services reports and, possibly, removal of their children into foster care. Michele G. is also one of the named plaintiffs in the federal civil rights class action lawsuit entitled, Nicholson v. Williams, 203 F. Supp.2d 153 (E.D.N.Y. 2002).

The background facts, culled from both the recent Nicholson decision and the Appellate opinion, are as follows: Michele G. is the mother of three children who reside with her. She had a long-term relationship with her son's father, Mr. H., which ended in January 1999. However, the parties did not reside together since 1997. Following the separation, there were several verbal disputes regarding visitation which resulted in police intervention, however there were never any reports of violence or threatened violence. On July 6, 1999, Mr. H. returned their son to her apartment following a scheduled visitation. However, upon his arrival Mr. H. flew into a rage after he discovered Ms. G. visiting with a male friend. Mr. H brutally attacked Ms. G. friend with a cleaver and when she attempted to intervene, the attacked then turned on her. The injuries inflicted on her were sufficient to require one week of hospitalization. One of the children was present during the attack, but did not suffer any physical injuries.

Following her discharge from the hospital, Ms. G. filed criminal charges, assisted with the police investigation, obtained an Order of Protection, and sought alternative, safe housing for herself and her children. However, ACS became involved shortly after the incident and, despite Ms. G.'s active steps to protect herself and her children, ACS filed an Article 10 petition in the New York County Family Court seeking the removal of the children. The record also indicated that ACS also based its decision to file the neglect proceeding based upon the mother's alleged refusal to cooperate with ACS.

Following a hearing, the Family Court determined that the mother had neglected her three children by failing to protect them from domestic violence. The children were removed from Ms. G's care and, surprisingly, placed with a member of Mr. H's family. It is the Family Court's dispositional order of December 7, 2000 and the same court's January 2002 denial of a motion to vacate said order from which the instant appeal lies.

As an initial matter the Court addressed the procedural challenge regarding mootness. While the dispositional order had, in fact, expired by the time the matter was heard by the Appellate Court, they declined to moot the entire case stating that the "finding of neglect upon which the Family Court decision was based remained reviewable given the potential effect of such findings in any future proceedings."

Following its review of the facts, the Court found that the record on appeal was bereft of any specific instances of domestic violence committed by Mr. H. prior to the July incident. Accordingly, the July 6th incident was sole episode of domestic violence, and as such, was insufficient to support a finding of neglect. The Court noted that if the Family Court record had contained information demonstrating that the July 6th incident was one in a series of incidents of violence or threats of violence against Michele G. or the children, or if the children witnessed these events and the mother failed to take steps to protect the children from the domestic violence, they would have affirmed the trial court's determination that the mother's conduct placed the children's physical, mental, and emotional condition in imminent danger of impairment. In so holding, the Court made a clear distinction between cases where there is a history and pattern of domestic violence and ones where there is an isolated incident. The Court also noted that the mother's refusal to cooperate with ACS following the incident was also insufficient in and of itself to support a finding of neglect. In its unanimous decision, the Court reversed and vacated the findings of neglect against the mother.

As it is the first federal civil rights case in the country to challenge the constitutionality of removing children from non-offending battered mothers, Nicholson v. Williams is being closely monitored by domestic violence and child welfare advocates, courts, lawmakers, governmental agencies, family and matrimonial attorneys, and law guardians throughout the nation. In Nicholson, Michele G and the other plaintiffs sued the New York City Administration for Children Services (ACS) alleging that ACS's practice of removing children solely on the grounds that the mothers were victims of domestic violence violated were unconstitutional. Following nearly two months of trial, on March 18, 2002 District Judge Jack B. Weinstein issued his comprehensive and lengthy decision. The Court's ruling made six specific findings regarding the City's present child welfare policies and practice: (1) ACS regularly alleges and indicates neglect against battered mothers; (2) ACS rarely holds abusers accountable; (3) ACS fails to offer adequate services to mothers before prosecuting them or removing their children; (4) ACS regularly separates battered mothers and children unnecessarily; (5) ACS fails to adequately train its employees regarding domestic violence; and (6) ACS's written policies provide insufficient and inappropriate guidance to its employees.

The Nicholson Court also found that City's actions violated key constitutional protections against substantive and procedural due process contained within the Fourteenth Amendment, the Fourth Amendment's right to be free from unreasonable search and seizure, the Ninth Amendment's case law-determined right to integrity of the family unit, the Thirteenth Amendment's prohibition against slavery and involuntary servitude, and the Nineteenth Amendment's prohibitions regarding sex-based discrimination. At the close of trial, the Court issued a remedial preliminary injunction against the City and the State to enjoin the unconstitutional practices. The suit remains pending in the federal courts and will be heard in the coming months. Although the case has not yet been completed, Nicholson's state and national impact is only now beginning to be fully realized. Doubtless, the First Department's recent ruling in In Re H/R Children also potentially offers considerable precedential opportunity throughout the state.

On February 26, 2003, citing last year's ruling in Nicholson, Assembly Member and Chairman of the Children and Families Committee, Roger L. Green, introduced a new bill (A.05313 Green) into the New York State Legislature seeking an amendment of the statutory definition of "neglect". Interestingly, the language used by the First Department in H/R's February 25th ruling, is virtually identical to that in the legislation which was introduced only one day later. Assemblyman Green's proposed bill seeks to amend Sections 371 of the Social Services Law and 1012 of the Family Court Act, by expanding the definition of neglect to specifically "exclude a child of a custodial parent or guardian who is a victim of domestic violence, unless it is established that by the court that the child was present during an incident and harmed by the domestic violence." The stated purpose of this bill is the prevention of the "unnecessary removal and placement of children into foster care when the custodial parent or legal guardian is a victim of domestic violence and there is no evidence of neglect by the battered custodian." The law would also establish a rebuttable presumption that a parent or legal guardian is a fit person able to safely raise the child. The law would further clarify that an allegation or specific fact-finding that the parent or guardian is a victim of domestic violence alone is insufficient evidence for the court to determine that the child is at imminent risk of harm warranting removal. On March 25, 2003, the bill was referred to the Codes Committee. No parallel bill has yet been introduced in the State Senate.

For copies of the decision or the legislation mentioned above, please contact Amy Schwartz at aschwartz@empirejustice.org or at   1-800-724-0490.

Copyright May 2003 - Empire Justice Center