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Child Removal Proceedings by Child Protective Services – Part II

family lawyer New YorkLevels of Proof

In proceedings brought in the Family Court by CPS, the level of proof necessary to establish child abuse or child neglect is minimal.  The formal rules of evidence which apply in other courts do not apply here.  CPS workers can present hearsay evidence from third parties.  They can present statements from three year olds or four year olds who have no clue as to what they are talking about.  The exercise of power by CPS in abuse and neglect proceedings can be abusive and inappropriate.  Allegations by CPS workers the parents failed to use appropriate standards of care concerning their children are extremely general and are difficult to defend against.

Children’s Injuries

In the normal course of their lives, children may be injured.  They will fall.  They will get knocked down by their friends or while playing.  They will be bruised.  They will have bumps.  Sometimes they will require stitches.  Sometimes children will break bones.  None of these events specifically is indicative of a parent being abusive or neglectful.  These injuries and maladies which children suffer are indications they are living fulfilling lives, playing and participating in sports, social and other recreational activities.  Children do not live in foam, rubber worlds where they don’t receive nicks and injuries.

Allegations by CPS are difficult to deal with.  Should you be contacted by CPS workers who are investigating allegations of child abuse or child neglect, you should immediately contact an attorney familiar with handing these types of cases.  Be very careful what you say to CPS workers.  Be advised that without a search warrant CPS workers do not have a right to enter your home.  The fourth amendment to the United State Constitution prevents the unreasonable search of parent’s homes.  If the CPS worker comes to your door and says they are there to investigate you, you can tell them you wish to seek consult with your attorney before meeting with them or discussing anything with them.  They may tell you you do not have a right to an attorney.  They are lying to you if they say this.  You have an absolute right to be represented by counsel in these proceedings.

Obtain Competent Legal Counsel

Getting involved in CPS proceedings without the appropriate legal representation puts you at great risk of saying something that can be misinterpreted and later used against you in an administrative proceeding involving your children.

family law attorney Elliot S. Schlissel is an attorney who has written numerous articles about CPS and ACS cases.  He represents individuals being investigated or charged with child abuse and child neglect throughout the Metropolitan New York area.  Elliot and his associates have been representing family members regarding CPS and ACS matters for more than 35 years.

Child Removal Proceedings by Child Protective Services – Part I

family law in New YorkChild Protective Services (hereinafter referred to as “CPS”), provides an important public service by protecting innocent children from difficult circumstances. We applaud CPS workers for protecting children from violence, negligence and inappropriate circumstances. This article, however, is about CPS workers threatening to remove or removing children from situations involving no violence and parents who have neither neglected nor abused their children.

CPS Filing Charges Against An Innocent Parent

If one parent is involved in child abuse or child neglect, CPS can file child abuse and child neglect proceedings against both parents. If one parent should have a proceeding brought against him or her because they were the neglectful or abusive parent, CPS files proceedings against the other parent claiming they endangered their children’s health and welfare by letting the other parent act in an abusive or neglectful manner. This is the case even if the innocent parent was not around, unavailable or was unaware of the allegations of the abusive or neglectful parent. This is also the case if the allegations against the abusive or neglectful parent are simply not true.

CPS Controlling Family Situations

In these situations CPS seeks to establish control over the family situation. They seek to force the parents into programs under threats they will lose their children. CPS sets extremely high standards in these programs and the goals that must be met by the parents to comply with CPS to their satisfaction to either avoid the children being removed from the home or to have the children returned to the family’s home.

CPS As An Adversary

The parents often find instead of CPS helping them to be better parents, that they are in an adversarial situation with CPS wherein CPS is both the investigator and the de facto prosecutor of the parent.family law attorney

The Removal of Children From Their Parents’ Homes by CPS and ACS Workers

parents attorney on long islandChild Protective Services (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) are social service agencies which have one extreme power. This is the power to have children removed from their parents’ homes. The intent of this power is to avoid children from being exposed to future child abuse or child neglect. The intent of this power is not to punish parents and their children. In this writer’s experience this power unfortunately punishes both the parents and their children! Children have two parents. Sometimes the parents live together in the household and sometimes they live in separate households. Even if the non-offending parent lives in a separate household than the alleged offending parent, CPS and ACS will often bring child abuse and child neglect allegations against the non-offending parent too.

When Abuse or Neglect is Suspected Action Needs To Be Taken by CPS and/or ACS

When a CPS or ACS worker reaches the decision the allegations made against the parents may be true, he or she must decide how to best protect the children from future abuse. The issue then becomes if one parent is the individual who caused the child abuse or child neglect, can the children be maintained by the other parent. In these cases, CPS and ACS then investigates the non-offending parent. They investigate as to whether the non-offending parent should have known about circumstances and events which may involve child abuse or child neglect. CPS and ACS will virtually always take the position that in the event there is domestic violence in the household, both parents are exposing the children to child abuse. In these cases the victim of the domestic abuse is also guilty of exposing the children to a dangerous situation. This makes the victim of domestic abuse doubly abused. Once abused by the perpetrator of the abuse and secondly abused by CPS or ACS.

Keeping Families Together

There are other options that CPS and ACS can take instead of removing children from a family’s home. CPS and ACS are required to preserve the family situation and the children’s safety. They must make reasonable efforts to establish a service plan the family can follow so the children can be maintained in their home. However, it should be noted even if CPS and ACS established a service plan for the family, they are still acting in an adversarial relationship to the parents. The service plan actually means that if you don’t do what they are telling you to do pursuant to this program we are going to take your children away from you. Instead of providing families with help it terrifies victims of domestic violence that they will lose their children. CPS service plans can also be hostile and punitive instead of educational and helpful.

Cooperating With Service Plans

When CPS or ACS establishes a family service plan, family members should use their best efforts to participate and cooperate with these plans. If the plans become overly burdensome you should notify the CPS or ACS worker in writing about the burdensome nature of the plans and discuss with them alternative plans. Simply not complying with the service plan is usually a mistake. The failure to comply with service plans will usually cause CPS or ACS to bring proceedings for the removal of the children from the family’s home.attorney for parents dealing with CPS

Child Protective Services and Mandatory Reporters

family law in New YorkThe purpose of this article is to provide a discussion on how innocent parents can sometimes fall into the net of Child Protective Services’ (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) investigations even when they have done nothing wrong.

Mandatory Reporters

The laws in the State of New York make many individuals mandatory reporters of potential child abuse or child neglect. These mandatory reporters include police officers, counselors, teachers, doctors, psychologists, psychiatrists, social workers and other individuals who work with children. Many of these workers are under the mistaken belief that any possible incident of suspected child abuse or suspected child neglect must be reported. This is not necessarily what the law requires and/or the intent of what the reporting statutes are. Mandatory reporters actually have a choice. Not every skinned knee, skinned elbow, black and blue mark, or bump on a child is an indication a child has been abused or neglected. These minor bruises can be indications the child actually has a fulfilling, playful, athletic life. These bruises can be an indication the child rough houses with his or her friends, or participates in sports, karate, and other activities.

What mandatory reporters do not seem to understand is they have a choice as to whether or not to report an innocuous injury to child protective services.

Powers CPS and ACS Workers Do Not Have

The following is a list of powers that CPS and ACS workers do not have:

  1. They cannot arrest you.
  2. They are not law enforcement officers.
  3. They cannot open up a criminal investigation. CPS and ACS workers are social service employees. They are a branch of social services’ departments. They are not part of the criminal justice system.

CPS and ACS and Your Rights

Even though CPS and ACS workers are not involved with prosecutorial or criminal justice powers, they can initiate a series of events which can lead to investigations by police agencies. It is therefore in your interest should you be contacted by a CPS or ACS worker related to an investigation either concerning child abuse or child neglect that you consult with an attorney experienced in representing individuals subject to CPS and/or ACS investigations. CPS and ACS investigations can lead to decisions that you have committed child abuse or child neglect. This material can be maintained in computers in New York State for a period of up to 28 years and have a negative impact on employment situations involving children.family law attorney

ACS Cannot Prove Mother Neglected Her Children

child custody attorney in New YorkThe Administration for Children’s Services (hereinafter referred to as “ACS”) had filed a petition against a mother, Simone S. They claimed she had neglected her child, Xavier. The matter was heard by Justice Valerie Pels in a Family Court in New York County. ACS took the position Simone did not provide adequate supervision and guardianship for Xavier. They also alleged she suffered from a mental illness which made Xavier’s continued supervision by the mother not to be in his best interest.

ACS sought to submit evidence to show after Xavier’s birth the hospital staff noted and reported to ACS that Simone had no connection with Xavier. Xavier was left unattended and Simone did not take care of Xavier’s basic needs.

ACS Failed to Prove Their Case

A hearing was held before Justice Valerie Pels. Justice Pels found ACS failed to prove by a preponderance of the evidence Simone had neglected her child. Simone did not testify at the hearing. The fact she didn’t testify allowed Judge Pels to take a negative inference against Simone. However this was not sufficient to make a ruling in favor of ACS. Justice Pels found ACS did not submit appropriate affirmative evidence with regard to supporting their allegations of inadequate supervision and guardianship.

Judge Pels stayed her decision for five days. The purpose of this was to give ACS sufficient time to obtain further evidence to prove their case. Justice Pels stated in her decision ACS should evaluate whether they should bring a new petition for inadequate supervision and guardianship. She requested ACS look into whether there was new information available concerning this case and they should look into Simone and Xavier’s current living circumstances.

Conclusion

Here is a case where a woman who allegedly is not taking care of her child, doesn’t even testify, and ACS still cannot prove their case against her. This is an example of how poorly organized ACS is and how they can’t prove their cases even if they are unopposed.family law attorney

ACS Removes Child From Parents’ Home Without Just Cause

CPS and ACS defense lawyerThe Administration for Children’s Services, hereinafter referred to as (“ACS”), brought a proceeding claiming that parents had neglected a one year old child. They claimed the parents were providing inadequate guardianship. They took the position the baby fell in the park and sustained an injury to his face. Despite the child being injured, ACS claimed the parents unreasonably failed to obtain medical care. As a result of this application, emergency removal of the child was conducted by ACS. The child was removed to ACS’ custody.

Parents Demand a Hearing

The parents demanded a hearing. The parents testified when the child fell, he cried. However, the mother picked him up, calmed him down and ascertained that it was not a serious injury. The parents took the position the injuries on the day that ACS appeared at their home and took pictures of the child were significantly worse than on the first day of the incident. The mother also stated that she was going to take the child to the hospital, but she changed her plans when ACS requested a meeting with her. Judge Erik Pitchal, sitting in the Family Court of Kings County, found the father’s testimony that he had spoken with the mother and requested she obtain medical attention for the child before leaving for work was believable. This is true even though several days went by and the mother had not obtained medical treatment for the child.

The judge found even though the parents did not take the child for immediate medical treatment, he would not remove the child from the parent’s custody. Judge Pitchal found the failure of the parents to seek quick medical attention did not cause further injury to the child or place the child in imminent danger or impairment. The judge therefore dismissed the petition and ordered the child be returned to his parents.

Conclusion

This is an example of ACS overreacting to a child who had a small bruise on his face. The parents in this case came very close to losing custody of their child over a small bruise which children periodically receive while playing.family law attorney

Child Abuse and Mandated Reporters – Part II

assistance for parents dealing with cps and acs Vigilance By Parents

If you or other members of your family are contacted by CPS with regard to an allegation of child abuse don’t be surprised if the police eventually show up at your doorstep to investigate the same occurrence. The best way to deal with allegations, no matter how silly, of child abuse and child neglect is to immediately contact an experienced attorney who handles allegations of child abuse and child neglect.

Rescuing Children and Creating Nightmares for Parents

Child Protective Services (“CPS”) performs an important public function. They help remove children from terrible situations where they are subject to abuse and neglect. They deserve the public’s admiration and appreciation by helping innocent children in these circumstances. However, at the same time they perform this valuable public service, CPS creates nightmares for parents by abusing governmental power against innocent parents and guardians of children. Cases involving innocent parents repeatedly shown that when Child Protective Services investigated them the social workers looked to find child abuse even in situations where it didn’t exist. CPS workers often lie, manipulate children, and fabricate evidence to blow up innocent situations to create evidence of alleged child abuse and child neglect. Parents are put into the position that they are guilty until proven innocent and it is extremely difficult to disprove a negative.

Conclusion

If you hear from the police or Child Protective Services about what may seem like minor issues of child abuse or child neglect, be careful, CPS may be looking to prove there is child abuse, not to investigate as to whether there is or is not child abuse.

Elliot S. Schlissel is an attorney who has been representing parents charged with child abuse and child neglect for more than 35 years.child custody attorney

Child Abuse and Mandated Reporters – Part I

defense when charged with child abuse by CPS or ACSThere are a number of mandated reporters of child abuse and/or neglect. There are many mandated reporters in New York who have legal obligations to report suspected and/or potential child abuse to Child Protective Services. Mandated reporters include doctors, nurses, school nurses, teachers, counselors, psychologists, police officers, and guidance counselors. Many of the reports submitted by mandated reporters are based on innocent events which are sometimes retold by children at school which involve common bruises, bumps and lumps children get from their normal daily activities when they play with their friends. School personnel have the misguided belief that under New York State law they are required to file a report with Child Protective Services if there is any possibility, no matter how remote, that there has been child abuse or child neglect. Teachers, guidance counselors, school nurses and other school personnel, although well meaning, file numerous false reports with child protect services virtually every day. The large majority of these reports should not have been filed in the first place!

Although school personnel are mandated reporters, they do not have to report each and every possible event no matter how far fetched to Child Protective Services. Unfortunately, school personnel believe they have to report every possible bump and bruise they see on a child to Child Protective Services. The statute in New York gives teachers and other school personnel latitude to take into consideration that bumps and bruises on a child was not caused by child abuse or child neglect.

Cross Reporting of Child Abuse

In every situation where police are brought to a home, school or other location where there is a child or children and there is suspected child abuse, the police are required, even if they find no child abuse took place, to report the incident to Child Protective Services. This causes a second investigation by Child Protective Services with regard to the incident.

Child Protective Services are called to a home if they suspect child abuse has taken place. They also cross report to the police. This can cause a second investigation by police officers. The fact that Child Protective Services and police cross report to each other causes families throughout the State of New York to be subject to multiple investigations of suspected child abuse and/or child neglect if their children received a bump, scratch, black and blue mark or other mark on their body from athletic activities or while playing with their friends.child custody attorney

Removal Of Children From Homes by Child Protective Services

assistance for parents dealing with cps and acsChild Protective Services (CPS) investigates abuse and neglect complaints against parents. If they have reasonable belief children have either been neglected or abused mentally or physically, they may seek to have the children removed from the family’s home.

Family Court Proceeding

Abuse and neglect proceedings are brought in the Family Court in the State of New York. In Nassau and Suffolk Counties on Long Island, these matters are prosecuted by the County Attorney’s Office. In the five boroughs of the City of New York, these proceedings are prosecuted by the Corporation Counsel’s office.

In cases where it is believed the children are at substantial risk of physical injury, sexual abuse or other types of abuse, proceedings can be brought in the Family Court to remove children from the family’s home. The taking of children from a home usually has a traumatic impact on the children’s parents.

Child Removal Proceedings

During the course of the child removal proceedings, Orders of Protection are usually given to the children to prevent the continued abuse of the children by the parents or other family members.

Parents who have their children removed from their home are entitled to a hearing. At that time the removal agency must establish a reasonable basis for the removal of the children. It is extremely important that families being investigated by CPS or who have had action taken against them by CPS retain competent, experienced counsel to represent them in these proceedings. Often arrangements can be made to have the children returned to their family’s home as part of an arrangement where the parents take parenting classes, and/or anger management classes. In these situations there is usually a series of follow up visits by Child Protective Services to make sure the children are being properly cared for. When parents enter into these agreements to take classes or obtain therapy it is important they actually go to the classes and therapy sessions. Entering into an agreement to undergo therapy or parenting classes and not attending either therapy sessions or the parenting classes can give the impression the parents aren’t serious about changing their ways and the children remain at risk.child custody attorney

Mother Brings Application To Regain Parenting Rights

Tune in to today’s video blog where we are discussing a case in which a mother brought an application to regain her parenting rights:


Elliot S. Schlissel is a family law attorney. Elliot has been representing parents in child custody, CPS and ACS investigations and other family matters for more than 35 years. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net. The phones are monitored 24/7.

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