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New York Raises the Bar for Interdisciplinary Practice In Family Violence Cases

By Karen Freedman and Betsy Kramer

When domestic violence gives rise to a child protective proceeding, the child protective agency and the court face a number of seemingly irreconcilable tensions. These include the tension between understanding that a battered woman is a victim and holding that victim responsible for failing to protect a child from the violence; the tension between respecting the constitutional right to family integrity, and respecting the right of a child to be safe from harm; and the tension between the risks inherent in leaving a child in a home where there is domestic violence, and the risks inherent in removing a child from that home.

In Nicholson v. Scoppetta, et al.,1 New York’s highest court, the Court of Appeals, issued a ground-breaking decision, which explains that the balancing of these competing interests requires interdisciplinary collaboration between well-trained, thoughtful social workers and their legal counterparts. Shortly following the decision from the Court of Appeals, the two sides settled the case. Under the terms of the settlement, reached Dec. 17, New York City’s Administration for Children’s Services (ACS) conceded that children should not be removed from the home solely because their mother is being abused. See sidebar.

Nicholson was filed in U.S. District Court for the Eastern District of New York on behalf of mothers and their children who were the subject of child neglect proceedings in New York City, based solely on allegations that the mother “allowed” the children to witness domestic violence in the home. Recognizing that the mothers and their children have independent rights and positions that might be affected by the proceedings, the court certified two “subclasses,” one of the mothers and one of the children, to ensure that each position had independent representation.

U.S. District Court Judge Jack B. Weinstein issued an opinion and injunction, finding that the policies and practices of New York’s Administration for Children’s Services violated the rights of both the children and their mothers.2 On appeal, the 2nd U.S. Circuit Court of Appeals found that it could not issue an opinion regarding the appropriateness of the injunction without first having clarification from New York State’s highest court regarding the applicable law.3 The National Center for Youth Law joined an amicus curiae on the appeal to the 2nd Circuit.

The 2nd Circuit posed three questions for New York’s Court of Appeals. First, the court inquired as to whether merely exposing a child to domestic violence could ever constitute child neglect on the part of the victim:

Does the definition of a “neglected child” under state law include instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child’s care allows the child to witness domestic abuse against the caretaker?4

Next, the court asked about the circumstances under which it would be appropriate to remove children from a home in which there is domestic violence:

Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker constitute “danger” or “risk” to the child’s “life or health,” as those terms are defined under state law.5

And, finally, the court asked for a discussion of the process for seeking state court approval to remove children from their homes:

Does the fact that the child witnessed such abuse suffice to demonstrate that “removal is necessary,” or that “removal was in the child’s best interest,” under to state law, or must the child protective agency offer additional, particularized evidence to justify removal?6

In answering each of these questions, the state Court of Appeals explained that sophistcated, legally informed casework decisions are necessary in every case. Rather than resting on generalized criteria or black-and-white responses to fact patterns, the court repeatedly demanded that individ-ualized, nuanced assessments be tested against the overarching statutory framework.

Harm to Child, Lack of Care Must Be Proven

In its answer to the first question, the state appeals court wrote that it is “unacceptable” to presume that a child who witnesses domestic violence has been neglected. Instead, the state statute requires that the Family Court make specific findings of fact prior to concluding that exposure to domestic violence warrants a neglect finding.

The Family Court must find the existence of two critical factors:

  1. That the child’s physical, emotional or mental condition has been impaired or is in imminent danger of becoming impaired;
  2. That the actual or threatened harm is a consequence of theparent’s failure to exe cise a minimum degree of care in providing the child with proper supervision or guardiaship.7

A finding of neglect is appropriate only if the particular facts of the case show both that the child was harmed or in imminent danger of becoming harmed, and that the parent failed to exercise a “minimum degree of due care” in protecting the child from that risk of harm. The two-part analysis “ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.”8

In determining whether the two elements of neglect have been proved, Family Court must look closely at the circumstances of the particular case. Accordingly, the question of whether the child has been harmed or is at risk of harm must include a consideration of the child’s special vulnerabilities.9 The question of whether the parent provided a “minimum degree of care” turns on whether the parent acted as a “reasonable and prudent parent” would have acted under the circumstances.10

Under this formulation, the state Court of Appeals found, it would be appropriate to make a neglect finding when the record establishes that there was repeated domestic violence by the mother’s paramour, the mother acknowledged that the children were aware of the violence and, despite acknowledging that the children had reason to fear the paramour, the mother allowed him to return to her home, and lacked awareness of any impact of the violence on the children.11

A finding would also be appropriate where the children were exposed to regular violence between the parents that required official intervention, and the caseworkers testified to the fear and distress the children experienced as a result of their long exposure to the violence.12

When there is evidence that a child has been neglected, or is at risk of being neglected, the child protective workers and the court must ask whether the risk of harm is so great that the child must be removed from the home. Just as it is inappropriate to presume that all children who are exposed to domestic violence are neglected, it is also inappropriate to presume that all children should be removed from homes in which there is domestic violence. When answering the question whether the potential injury from witnessing domestic violence warrants removal, the court repeated the principle that “not every child exposed to domestic violence is at risk of impairment.” “A fortiari, exposure of a child to violence is not presumptively ground for removal, and in many instances removal may do more harm to the child than good.”13

With this holding, the Court specifically rejected a long-accepted practice of taking the “safer course” and removing children when there is a question as to the extent of the harm posed. “The term ‘safer course’ [citations omitted] should not be used to mask a dearth of evidence or as a watered-down, impermissible presumption.”14 Instead, “the court must do more than identify the existence of a risk of serious harm. Rather, a court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. It must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests.”15

Balance of Competing Interests

How then, are courts and child protective workers to determine whether a child should be removed? Because this question had never been clearly answered by New York courts, the Court of Appeals broke new ground in providing guidance as to the calculus that must be made when a removal is contemplated. To begin, the Court of Appeals noted, the Family Courts must recognize that several competing principles are at issue when a removal is contemplated. These include the constitutional rights of the children and their parents, the state Legislature’s expressed recognition that exposure to domestic violence can harm children “both directly and indirectly,” and New York’s “long embraced” “policy of keeping
biological families together.”16

While the court declined to discuss the constitutional issues that may be implicated in removals, it set out those issues as a framework for its analysis. Among them, the court recognized that an emergency removal might implicate “the parents’ and child’s procedural due process rights, and the child’s Fourth Amendment rights.”17 In other words, a child has rights, independent from those of the parent, to due process of law before being removed from the family. And, removing a child from the family may violate the child’s right (as well as that of the parent) to be free from unreasonable seizures.

Respecting those Constitutional rights is consistent with “the Legis-lature’s expressed goal of placing increased emphasis on preventive services designed to maintain family relationships rather than responding to children and families in trouble only by removing the child from the family.”18 In order to protect the constitutional rights of the child and family, and to respect the legislative goal, the child protective agency must make reasonable efforts to prevent the need for the child’s removal from the home when there is a risk of harm.

Steps to be considered include obtaining a temporary order of protection; notifying the police; providing safe shelter to the victim and the children; changing the locks in the home; devising a “safety plan” for use if the batterer returns; and providing other services to the victim.

The state Court of Appeals wrote that the Family Courts must be careful to understand the effect that a removal may have upon the child’s well-being. In every case, “a court must engage in a balancing test of the imminent risk with the best interest of the child.”19 Because separation from home, family and community can be traumatic for a child, it should not be done– regardless of the parents’ actions––if the harm from that separation outweighs the potential benefit of removing the child.

It is particularly difficult to determine which course of action would be in the child’s best interest when the child is not in physical danger, but risks suffering emotional harm from exposure to domestic violence. How is one to determine whether the trauma that a child might suffer by being exposed to domestic violence would outweigh the trauma of being removed from the home?

Family Courts and child protective workers must assess the impact that a removal may have on the particular child who is before them. As the state Court of Appeals recognized in its response to the first question, each child is affected differently by exposure to domestic violence. And, each child responds differently to being removed from the home. To assess the relative impact of these harms, social workers must pay close attention to the cues given by the child, including the child’s statements and behaviors.

Finally, in its answer to the question of whether the fact that a child witnessed domestic violence is sufficient to show that removal is necessary or in the child’s best interest, the court wrote, once again, that “there can be no blanket presumption favoring removal when a child witnesses domestic violence.”20 Reiterating the standard set forth in its answer to the second question, the court wrote, “When a court orders removal, particularized evidence must exist to justify that determination, including, where appropriate, evidence of efforts made to prevent or eliminate the need for removal and the impact of removal on the child.” 21

While the Court declined to identify the particular factors that must be shown to justify a removal, the Court made a point of stating what would not necessarily be required: expert testimony.22 To make a showing that a child is at risk of emotional harm, competent casework testimony can be used to establish the effect that domestic violence has on the emotional well-being of a particular child.

The court’s opinion is certain to have implications for all child neglect cases, not just those involving domestic violence. Throughout the opinion, the court spoke in broad terms regarding the need to respect the rights of children in child welfare cases, and to make an independent assessment, in each case, of the harm that is posed to the particular child in the home, as well as of the potential harm posed to the child by the possibility of removal from the home.

Competent Social Work Integral to Sound Decisions

In the end, the court demanded that thoughtful, high-quality social work, informed by legal analysis, be used to resolve each case. The Family Court and child protective agency are prohibited from presuming that a child is at risk of harm and from removing a child from the home based solely upon theparents’ actions. Instead, the child protective workers and the Family Court must provide specific information regarding the effects of the violence upon the particular child. They must engage in creative thinking to devise safety plans that would eliminate the need for removing the child from the home. And, they must balance the threat of harm to the child in the home against the threat of harm resulting from removal.

New York state law requires that in each case, caseworkers, attorneys, and the courts have the tools to conduct an independent, individualized assessment of the nature of the harm posed, and the best way to protect the child under the circumstances presented.
To comply with the demands of that law, child protective agencies must create a cadre of caseworkers who are competent to make these complex analyses. Advanced, ongoing training is essential. Clinical consultation teams, with expertise in various child protective issues, such as domestic violence, substance abuse, and sex abuse, are an invaluable tool for fieldworkers who are faced with complicated fact patterns.

And, finally, because these assessments involve an entanglement of legal rights with social work determinations, the required analysis must include interdisciplinary collaboration between attorneys and social workers who practice in Family Court. Without these resources, child protective workers and the Family Courts will be hard-pressed to comply with the demands of the law.

New York City Settles Suit Over Taking Children Away From Domestic Violence Victims

New York City has settled a class action lawsuit filed by victims of domestic violence who claimed the city was wrongly separating them from their children. The city, which settled with plaintiffs on Dec. 17, agreed that such abuse does not automatically warrant placement of the children in foster care.
The decision comes several months after the New York Court of Appeals, the state’s highest court, ruled that domestic violence between partners cannot serve as the sole reason for removal of children from the home. Since the case, Nicholson v. Scoppetta1 was filed in 2001, the city has so reformed its handling of these cases that both sides agreed court intervention was not really needed. (See story on p.7)
1 Nicholson v. Scoppetta, et al., No. 113, 2004 N.Y. Lexis 3490 (N.Y. October 26, 2004).

Karen Freedman is Founder and Executive Director of Lawyers for Children in New York City, which was co-counsel on the Nicholson v. Scoppetta, et al. case with The Legal Aid Society of New York.
Betsy Kramer is the Senior Attorney for Lawyers for Children’s Public Policy and Special Litigation Project. Lawyers for Children is a local non-profit organization that provides free legal and social work services to children in cases involving abuse and neglect, foster care, custody, adoption and termination of parental rights.


1 Nicholson v. Scoppetta, et al., No. 113, 2004 N.Y. Lexis 3490 (N.Y. October 26, 2004).
2 Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001).
3 Nicholson v. Scoppetta, 344 F.2d 154, 158 (2d Cir. 2003).
4 Id. at 176.
5 Id. at 176-177.
6 Id. at 177.
7 Nicholson 2004 N.Y. Lexis 3490,
at *10.
8 Id.
9 Id. at *13.
10 Id.
11 Matter of James MM v. June OO., 294 A.D.2d 862 (3d Dept. 1989); Nicholson 2004 N.Y. Lexis 3490, at *16.
12 Matter of Theresa CC., 178 A.D.2d 687 (3d Dept. 1991); Nicholson 2004 N.Y. Lexis 3490, at *16.
13 Nicholson 2004 N.Y. Lexis 3490, at *23
14 Id. at *36.
15 Id. at *31.
16 Id. at *22.
17 Id. at *19.
18 Id. at *21-22.
19 Id. at *35.
20 Id. at *39.
21 Id.
22 Id. at *41.