court of appeals state of new york...apl-2017-00008 court of appeals of the state of new york in the...
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APL-2017-00008
Court of Appeals of the
State of New York
In the Matter of the Application of
NATASHA W.,
Petitioner-Respondent,
For a Judgment Pursuant to Article 78 of the CPLR
-against-
NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES,
NEW YORK STATE CENTRAL REGISTER OF CHILD ABUSE AND MALTREATMENT
Respondents-Appellants.
BRIEF OF AMICI CURIAE NYU FAMILY DEFENSE CLINIC, THE BRONX DEFENDERS, LEGAL ASSISTANCE OF WESTERN NEW
YORK, BROOKLYN DEFENDER SERVICES, CENTER FOR FAMILY REPRESENTATION, NEW YORK STATE DEFENDERS ASSOCIATION, FRANK H. HISCOCK LEGAL AID SOCIETY &
OFFICE OF THE MONROE COUNTY PUBLIC DEFENDER
CHRISTINE GOTTLIEB
MARTIN GUGGENHEIM
NYU FAMILY DEFENSE CLINIC
WASHINGTON SQUARE LEGAL SERVICES
245 Sullivan Street, 5th Floor New York, New York 10012 Tel.: (212}998-6693 Fax: (212) 995-4031
Dated: March 20, 2018
DISCLOSURE STATEMENT
Pursuant to 22 N.Y.C.R.R. Part 500.l(f), The NYU Family Defense Clinic,
The Bronx Defenders, Legal Assistance of Western New York, Brooklyn Defender
Services, Center for Family Representation, New York State Defenders
Association, Frank H. Hiscock Legal Aid Society & Office of the Monroe County
Public Defenders disclose that they are non-profit organizations with no parents,
subsidiaries or affiliates.
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TABLE OF CONTENTS
PRELIMINARY STATEMENT .......................................................... 1
STATEMENTS OF INTEREST .......................................................... 2
ARGUMENT ............................................................................... 6
I. THIS COURT'S DETERMINATION OF WHAT CONSTITUTES MALTREATMENT FOR PURPOSES OF THE STATE CENTRAL REGISTRY WILL GOVERN LOWER COURTS' CONSIDERATION OF THE QUESTION OF WHAT CONSTITUTES NEGLECT UNDER ARTICLE 10 OF THE FAMILY COURT ACT. LOOSENING THE WELL-ESTABLISHED NICHOLSONNEGLECT STANDARD WOULD BE HARMFUL TO FAMILIES .................................................................................. 7
A. Because the Definitions of Maltreatment and Neglect Are Identical, a Ruling Regarding Maltreatment Would Have Significant Effects Beyond the State Central Registry .................................................................................................................. 7
B. The Definition of Neglect Plays A Critical Gatekeeping Role in Family Court ......................................................................................... 10
IL THE APPELLATE DIVISION'S DETERMINATION THAT NATASHA W. DID NOT MAL TREAT HER CHILD WAS BASED ON A STRAIGHTFORWARD APPLICATION OF THE NICHOLSON STANDARD. OVERRULING THAT DETERMINATION RISKS SENDING THE MESSAGE TO LOWER COURTS THAT FINDINGS OF NEGLECT CAN BE BASED ON SPECULATIVE HARM OR A PER SE RULE ....................................... 15
A. Per se rules are inappropriate in the context of Neglect Cases Under Article 10 of the Family Court Act ................................................................ 15
B. The Appellate Division meticulously applied Nicholson to the facts of this case and provided effective guidance to lower courts on the dangers of subjective, speculative assessments of risk of harm to children ..................................... 1 7
CONCLUSION ............................................................................. 20
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TABLE OF AUTHORITIES
Cases Grant v. Cuomo, 130 A.D.2d 154 (1st Dep't 1987) ....................................................................... 8 In re Allen Children, 30 Misc.3d 634 (Oswego Cty. Fam. Ct. 2010) ........................................... 19 In re Andrew B.-L., 43 A.D.3d 1046 (2d Dep't 2007) .................................................................. 16 In re David G., 29 Misc.3d 1178 (Kings Cty. Fam. Ct. 2010) ..................................................... 17 In re Elizeo C., 19 Misc.3d 1112(A) (Kings Cty. Fam. Ct. 2007) ................................................ 17 In re Hannah U, 97 A.D.3d 908 (3d Dep't 2012) .. ; ..................................................................... 17 In re Peterson Children, 185 Misc.2d 351 (Kings Cty. Fam. Ct. 2000) ....................................... 17 In re Rashard D., 15 A.D.3d 209 (1st Dep't 2009) ...................................................................... 20 In re Shannon ZZ, 8 A.D.3d 699 (3d Dept. 2004) ....................................................................... 17 In re Summer Y-T, 32 A.D.3d 212 (1st Dep't 2006) ................................................................... 16 Matter of Afton C.,17 N.Y.3d 1, 10 (2011) .................................................................................. 16 Matter of Alena 0., 220 A.D.2d 358 (1st Dep't 1995) ................................................................. 16 Matter of Blackwelder, 139 Misc.2d 776 (Cayuga Cty. Fam. Ct. 1988) ...................................... 17 Matter of Brian M v. New York State Off of Children & Family Servs., 98 A.D.3d 743 (2d Dep't
2012) ........................................................................................................................................... 8 Matter of Gerald HH v. Carrion, 130 A.D.3d 1174 (3d Dep't 2015) ........................................... 8 Matter of Jamie J., 30 N.Y.3d 275 (2017) .............................................................................. 11, 13 Matter of Jennifer N, 173 A.D.2d 971 (3d Dep't 1991) .............................................................. 16 Matter of Marie B., 62 N.Y.2d 352 (1984) ................................................................................... 10 Matter of Natasha W. v. New York State Off of Children & Family Servs., 145 A.D.3d 401 (1st
Dep't 2016) ..................................................................................................................... 9, 17, 18 Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004) ....................................... ; ............................... passim Nicholson v. Scoppetta, 344 F.3d 154 (2d Cir. 2003) ................................................................... 10 Steadv. Joyce, 147 A.D.3d 1317 (4thDep't2017) ........................................................................ 8 Stewart v. Carrion, 80 A.D.3d 417 (1st Dep't 2011) ..................................................................... 8 Troxel v. Granville, 530 U.S. 57 (2005) ....................................................................................... 10 Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994) ............................................................................. 19
Statutes Family Court Act § 1024 ......................................................................................................... ; ..... 11 Family Court Act§ 1026 .............................................................................................................. 11 Family Court Act§ 1027 .............................................................................................................. 11 Family Court Act § 1028 .............................................................................................................. 11 Family Court Act§ 1052 .............................................................................................................. 11 Family Court Act§ 1054 .............................................................................................................. 11 Family Court Act§ 1011 .............................................................................................................. 11 Family Court Act§ 1012(f) ...................................................................................................... 7, 15 Family Court Act§ 1055 ..................................................... , ........................................................ 11 Family Court Act§ 1017 ........................................................................................................ 11, 12 Family Court Act§ 1022 .............................................................................................................. 11 Social Services Law§ 412(2) ..................................................................................................... 1, 7 Social Services Law§ 422(8)(c) ..................................................................................................... 9
Other Authorities
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Casey-CSSP Alliance for Racial Equity in the Child Welfare System, Robert B. Hill, Synthesis of Research on Disproportionality in Child Welfare: An Update (2006) ..................................... 14
NYS OCFS, The OCFS Initiative to Address Racial Disproportionality in Child Welfare and Juvenile Justice ............................................................................................ ; .............. ; ............. 14
Reducing the Trauma of Investigation, Removal, & Initial Out-Of-Home Placement in Child Abuse Cases: Project Information and Discussion Guide, Center for Improvement of Child and Family Services (2009) ...................................................................................................... 12
Sankaran &Church, Easy Come Easy Go: The Plight of Children who Spend Less than Thirty Days in Foster Care, 19 U. Pa. J.L. & Soc. Change 207 (2017) .............................................. 12
Tina Lee, Processes of Racialization in New York City's Child Welfare System, 28 City & Society 276 (2016) .................................................................................................................... 14
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PRELIMINARY STATEMENT
Although this case directly presents questions only about what constitutes
"maltreatment" for purposes of placement on the State Central Registry of Child
Abuse and Maltreatment, this Court's resolution of the appeal may have significant
and troubling implications for the adjudication of neglect proceedings under Arti
cle 10 of the Family Court Act (FCA). Because the Social Services Law (SSL) in
corporates the definition of neglect found in the Family Court Act when defining
maltreatment, SSL§ 412(2), courts and litigants treat the terms and standards for
"neglect" and "maltreatment" interchangeably. Therefore, in determining whether
Respondent Natasha W.'s actions constitute maltreatment, this Court will unavoid
ably be establishing precedent that lower courts will consider binding as they de
cide the thousands of neglect cases heard in New York Family Court each year.
Amici respectfully present this amicus brief to underscore for the Court the rela
tionship between the question presented in this appeal and the law governing ne
glect proceedings under Article 10, and to detail for the Court the significant ef
fects of Appellants' argument which departs from the definition of neglect articu
lated in this Court's decision in Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004). In
particular, to the extent that Appellants advocate an outcome that might be per
ceived by lower courts as establishing a per se rule or as loosening Nicholson's re
quirement of a case-specific analysis, amici urge this Court to reject such an ap-
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proach, which would result in unjustified and damaging intrusion on family life
when children are not at risk of harm.
Amici are family defense organizations representing the majority of parents
in FCA Article 10 abuse and neglect proceedings throughout New York State, with
experience in tens of thousands of such cases. Consequently, Amici are particularly
well-situated to recognize the implications of the position Appellants argue for on
this appeal. This brief will review this Court's directives rejecting per se rules in
the neglect context, and detail the harmful effects of loosening the requirement that
the State allege particularized risk to children before invoking the jurisdiction of
Family Court to intervene in family life. The definition of neglect in the Family
Court Act, as explicated by this Court in Nicholson, serves a critical gatekeeping
role at the door of Family Court. Amici urge this Court to reject the alternative ap-
proach offered by Appellants and to affirm the First Department's straightforward
application of Nicholson.
STATEMENTS OF INTEREST
The New York University School of Law Family Defense Clinic, a pioneer
of interdisciplinary representation in child welfare, works to protect family
integrity and help families access services that keep children safe and out of foster
care. Family Defense Clinic faculty teach, research, and write on child welfare,
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advocate for policy reform, and train and provide technical support to advocates
around the country. Clinic faculty have represented hundreds of parents and
children in child protective proceedings in federal and state courts, including the
United States Supreme Court, the New York Court of Appeals, the Appellate
Division, and Family Courts.
The Bronx Defenders is a nonprofit provider of innovative, holistic, client-
centered criminal defense, family defense, civil legal services, and social work
support to indigent people in the Bronx.1 The Bronx Defenders staff of over 200
advocates represents approximately 35,000 individuals each year and reaches
hundreds more through outreach programs and community legal education. The
attorneys, social workers, and parent advocates in BXD's Family Defense Practice
are funded by New York City to represent parents and caregivers in Article 10 and
Termination of Parental Rights proceedings in New York City Family Court,
Bronx County. BXD has represented over 6,000 indigent parents and caregivers
and represents an additional 1,000 parents each year. BXD is committed to
providing quality legal representation to indigent parents accused of abuse and
neglect and facing the possible termination of their parental rights, as well as to
assisting families in accessing quality social services in order to keep children safe
/'
1 Bronx Defenders participated in Natasha W.'s OCFS hearing, but did not represent Natasha W. in the subsequent litigation.
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and out of state care. The Bronx Defenders has filed amicus curiae briefs in
numerous cases involving family defense, criminal justice, and civil rights issues.
Legal Assistance of Western New York, Inc. ("LawNY") is one of the
largest providers of civil legal services in the upstate region. Law NY' s service area
spans fourteen counties in western New York. Currently, LawNY is an institutional
family court assigned counsel provider in Wayne, Cattaraugus, and Chautauqua
counties and handles over 1,200 family court cases annually. A significant portion
ofLawNY's family court practice is focused on comprehensive and quality
representation to parents in Family Court Act Article 10 matters. As an agency,
LawNY works to bring the concerns of parents living in the more rural and
underserved parts of New York to the forefront of the ongoing statewide efforts to
improve the child welfare system.
Brooklyn Defender Services ("BDS") represents over 30,000 low-income
Brooklyn residents each year and is the primary provider of legal representation to
respondents in child protection proceedings in Kings County Family Court. BDS's
Family Defense Practice currently represents approximately 3,000 clients and has
represented over 10,000 clients in Family Court. BDS's interdisciplinary team of
attorneys, social workers and paralegals advocate to keep children out of foster
care and safely reunify families as quickly as possible.
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The Center for Family Representation, Inc. ("CFR") represents indigent
parents in child protective and termination of parental rights proceedings in
Manhattan and Queens Family Courts. CFR assigns every parent an
interdisciplinary family defense team comprised of an attorney, a social worker,
and a parent advocate (parent advocates are trained professionals who have had
direct experience being prosecuted in Family Court, losing their children to foster
care, and successfully reunifying their families). Since its founding in 2002, CFR
has provided high quality defense to over 7,800 indigent parents with more than
11,500 children, and has trained more than 10,000 practitioners in 19 states.
The New York State Defenders Association ("NYSDA") is a not-for-profit
membership association of more than 1, 700 public defenders, legal aid attorneys,
18-b counsel and private practitioners throughout the state. NYSDA's mission is
to improve the quality and scope of publicly supported legal representation to low
income people. In pursuit of this mission, with funds provided by the state of New
York, NYSDA operates the Public Defense Backup Center (the "Backup Center"),
which offers legal consultation, research, and training to nearly 6,000 lawyers who
represent individuals who cannot afford to retain counsel in criminal and Family
Court cases. The Backup Center also provides technical assistance to counties that
are considering changes and improvements in their public defense systems.
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The Frank H. Hiscock Legal Aid Society promotes the fundamental right of
every person to equal justice under the law by providing high quality legal
assistance to individuals and families in need in Family Court and other various
civil matters in Onondaga County and the surrounding region. The HLAS Family
Court Program contracts with the county to provide parent representation, and
serves approximately 2000 parents a year in abuse and neglect, termination of
parental rights, custody and visitation, paternity, child support violations, and
family offense matters.
The Office of the Monroe County Public Defender represents indigent
individuals in criminal and family court matters in the courts of Monroe County,
New York, including Supreme and County Courts, Town and Village Courts,
Rochester City Court, Monroe County Family Court, the Appellate Division,
Fourth Department and the Court of Appeals. The Office's Family Court Bureau
represents approximately 2,300 new clients each year in all matters for which
indigent litigants are eligible for assigned counsel under FCA § 262. The Family
Court Bureau represents respondents and non-respondent parents in all aspects of
state intervention cases, including Article 10 abuse and neglect proceedings,
permanency hearings, ancillary custody and/or family offense proceedings, and
termination of parental rights proceedings.
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ARGUMENT
I. THIS COURT'S DETERMINATION OF WHAT CONSTITUTES MALTREATMENT FOR PURPOSES OF THE STATE CENTRAL REGISTRY WILL GOVERN LOWER COURTS' CONSIDERATION OF THE QUESTION OF WHAT CONSTITUTES NEGLECT UNDER ARTICLE 10 OF THE FAMILY COURT ACT. LOOSENING THE WELL-ESTABLISHED NICHOLSON NEGLECT STANDARD WOULD BE HARMFUL TO FAMILIES.
A. Because the Definitions of Maltreatment and Neglect Are Identical, a Ruling Regarding Maltreatment Would Have Significant Effects Beyond the State Central Registry.
The statute defining maltreatment incorporates the law of neglect, tying to-
gether the two concepts. The Legislature defined a neglected child as any "child
less than eighteen years of age whose physical, mental or emotional condition has
been impaired or is in imminent danger of becoming impaired as a result of the
failure of his parent or other person legally responsible for his care to exercise a
minimum degree of care." FCA § 1012(f)(i). The Legislature explicitly incorpo-
rated this definition of neglect from the Family Court Act when defining maltreat-
ment in the Social Services Law. SSL § 412(2) ("A 'maltreated child' includes a
child under eighteen years of age: (a) defined as a neglected child by the family
court act; or (b) who has had serious physical injury inflicted upon him or her by
other than accidental means."). The New York Codes, Rules, and Regulations also
uses the definition of neglect found in the Family Court Act to define a maltreated
child. See 18 NYCRR 432.l(b).
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Consistent with the language of the statutes, New York courts have largely
treated neglect and maltreatment interchangeably. See Grant v. Cuomo, 130
A.D.2d 154, 190 (1st Dep't 1987) (Rosenberger, J., dissenting) ("The definitions of
abuse and maltreatment in Social Services Law 412 incorporate by reference the
definitions of abuse and neglect found in section 1012 of the Family Court Act ...
Maltreatment subsumes the category of neglect which is defined as follows ... ").
New York courts routinely refer to the Family Court Act definition of neglect to
define maltreatment. See, e.g., Matter a/Gerald HH v. Carrion, 130 A.D.3d 1174,
1175 (3d Dep't 2015) ("To establish maltreatment, the agency was required to
show by a fair preponderance of the evidence that the physical, mental or emotion-
al condition of the child had been impaired or was in imminent danger of becom-
ing impaired because of a failure by petitioner to exercise a minimum degree of
care in providing the child with appropriate supervision or guardianship"); Stead v.
Joyce, 147 A.D.3d 1317, 1318 (4th Dep't 2017) (same); Matter of Brian M v. New
York State Off of Children & Family Servs., 98 A.D.3d 743, 743 (2d Dep't 2012)
(same); Stewart v. Carrion, 80 A.D.3d 417, 417 (1st Dep't 2011) (same).
Both Appellants and the Appellate Division used the concepts of neglect and
maltreatment interchangeably in this case. The First Department relied upon the
definition of maltreatment found in the New York Codes, Rules and Regulations,
referenced the Family Court Act, and pointed to the seminal case, Nicholson v.
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Scoppetta, 3 N.Y.3d 357 (2004) to flesh out the standard. See Matter of Natasha
W v. New York State Off of Children & Family Servs., 145 A.D.3d 401, 406 (1st
Dep't 2016) (noting that the definition of neglect in the Family Court Act and the
definition of maltreatment in the New York Codes, Rules and Regulations are
identical). The dissent also refers to the definitions of neglect found in the NY-
CRR, the Family Court Act, and Nicholson as the standard to define maltreatment.
Id. at 416-417.
Appellants likewise point to the definition of neglect in the Family Court
Act as the definition of maltreatment. See App. Br. at 5. Throughout their brief,
when addressing the concept of maltreatment, Appellants refer to the standards laid
out in Nicholson, a case addressing an Article Ten case regarding neglect. See App
Br. at 6, 28, 34, 46.
In arguing for a more expansive definition of neglect, the dissent below em-
phasizes that "the sole consequence" at issue is the maintenance of a record in the
registry that might affect employment opportunities.2 Natasha W, 145 A.D.3d at
2 In downplaying the effects of its position, the Appellate Division dissent also emphasizes that an employer may choose to hire an applicant despite the existence of an indicated case in the registry. Natasha W., 145 A.D.3d 401, 413. In Amici's experience, the fact that an employer is allowed by law to hire someone with an indicated case offers no meaningful benefit to those on the registry because employers are not told the nature of the allegations that led to an indicated case. See SSL§ 422(8)(c)(allowing the SCR to inform certain employers that "the person about whom the inquiry is made is the subject of an indicated child abuse or maltreatment report") An employer is told only that there is an indicated case and not whether it was indicated case because a parent's teenage child missed school or because a parent intentionally inflicted sexual or severe physical abuse on a child. Given the limited information provided to employers, it should come as no surprise that Amici's clients are routinely dismissed from and refused employment by employers that have strict policies ofrefusing to retain or hire any employee who has an indicated case.
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413. Appellants dismissively refer to a "mere report of maltreatment." See App.
Br. at 30, n.9. These characterizations vastly underplay the stakes of this case. Be-
cause the definition of neglect structures the entire framework for government in-
tervention into families, up to and including removal of children from their homes,
the Court's opinion in this case may reach well beyond Natasha W.'s family to
significantly affect the law governing all Article Ten cases.
B. The Definition of Neglect Plays A Critical Gatekeeping Role in Family Court.
Both the Supreme Court and this Court have long recognized raising one's
children as a fundamental right. See Troxel v. Granville, 530 U.S. 57, 65 (2005)
("The liberty interest at issue in this case-the interest of parents in the care, cus-
tody, and control of their children-is perhaps the oldest of the fundamental liberty
interests recognized by this Court."). This Court has emphasized that
"[f]undamental constitutional principles of due process and protected privacy pro-
hibit gbvernmental interference with the liberty of a parent to supervise and rear a
child except upon a showing of overriding necessity." Matter of Marie B., 62
N.Y.2d 352, 358 (1984). The state can interfere with this right only in limited cir-
cumstances, as parents have due process rights to raise their children as they see
fit. See Nicholson v. Scoppetta, 344 F.3d 154, 171 (2d Cir. 2003) (citing Tenebaum
v. Williams, 193 F.3d 581, 593 (2d Cir. 1999)) ("As a general rule ... before parents
may be deprived of the care, custody, or management of their children without
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their consent, due process--ordinarily a court proceeding resulting in an order
permitting removal-must be accorded to them."). The Legislature specified that
the filing.of a petition alleging abuse or neglect is the mechanism by which the
government can open the door to intervention in the family. FCA § 1011. As a re-
sult, the clearly-articulated definition of neglect is critical to cabining the sphere of
state intervention in the family.
The Family Court Act provides that with the filing of a neglect petition, the
state can remove a child from his or her parent when remaining at home presents
an imminent risk or danger to the child's life or health. FCA §§ 1022, 1024, 1026,
1027, 1028. After a finding of neglect, a child can be removed from a parent ifthat
is in the child's best interests. FCA § 1055. Even when a child is not removed, the
government can impose significant intrusions on a family both pending and at the
disposition of a neglect proceeding, including placing the family under supervi-
sion, compelling a parent to engage in rehabilitative services, and issuing orders of
protection. FCA §§ 1017, 1027, 1028, 1052, 1054. Without a viable allegation of
legal neglect, however, the state cannot undertake these dramatic interventions in
the life of a family.
The consequences of the filing of a neglect petition can be swift and momen-
tous for families. As this Court recently noted, social science research has shown
that removals from home and family and placement in foster care can have signifi-
11
cant harmful effects on a child. See Matter of Jamie J., 30 N.Y.3d 275, 280 n.1
(2017); see also Reducing the Trauma of Investigation, Removal, & Initial Out-Of
Home Placement in Child Abuse Cases: Project Information and Discussion
Guide, Center for Improvement of Child and Family Services, at 12-15 (2009);3
Sankaran & Church, Easy Come Easy Go: The Plight of Children who Spend Less
than Thirty Days in Foster Care, 19 U. Pa. J.L. & Soc. Change 207 (2017).4
Even when children are not removed and placed in foster care, the filing of a
neglect case itself frequently leads to considerable intrusion in family life. In Ami-
ci' s experience, if children are allowed to remain home with a parent during the
pendency of a neglect case, the Family Court invariably enters court orders against
that parent at the outset of the case. Such orders are typically entered whether or
not that parent is a respondent in the case (often only one parent is charged with
neglect and the child remains with the non-respondent parent). See FCA § 1017
(requiring non-respondent parents to submit to the jurisdiction of the court and au-
thorizing the court to impose terms and conditions on the non-respondent parent).
These orders often include directing children's services staff to regularly enter the
home, including surprise visits at any time of the day or night, and requiring par-
ents to attend multiple classes or mandated therapy, and to sign confidentiality
3This report is posted on the OCFS website. http://ocfs.ny.gov/main/ cfsr/Reducing%20the%20trauma%20of0/o20investigation%20removal %2 0%20initial%20out-of-home%20plcaement%20in%20child%20abuse%20cases.pdf 4 available at http:/ !scholarship.law. upenn.edu/cgi/viewcontent.cgi ?article= 1197 &context=jlasc
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waivers allowing caseworkers to obtain information from therapists and medical
providers. Article 10 cases often take years to resolve, due in significant part to
court delay, allowing these intrusions to last for substantial portions of a child's
life.
This Court has long recognized the dangers of government overreach in this
area and has emphasized that a precise definition of neglect is an essential compo-
nent of gatekeeping for the Article 10 process. "The drafters of Article 10 were
'deeply concerned' that an imprecise definition of child neglect might result in
'unwarranted state intervention into private family life."' Nicholson, 3 N.Y.3d at
368 (quoting Besharov, Practice Commentaries, McKinney's Cons Laws ofNY,
Book 29A, Family Ct Act§ 1012 at 320 [1999 ed])). As this Court recently under-
scored, "Neglect findings cannot be casually issued, but require proof of actual or
imminent harm to the child as a result of a parent's failure to exercise a minimum
degree of care. 'This prerequisite ... 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.
'Imminent danger' ... must be near or impending, not merely possible."' Jamie J.,
30 N.Y.3d at 284 (quoting Nicholson, 3 N.Y.3d at 369) (alterations in original). In
short, "Article 10 erects a careful bulwark." Id. Consistent with these directives,
amici regularly file motions to dismiss neglect petitions for failure to state a claim
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when the state seeks to intervene in families without alleging particularized risk to
a child. Loosening the carefully-circumscribed definition of neglect would weaken
that protection and result in unnecessary and harmful intrusion in the lives of chil-
dren and families in New York.
Precise legal definitions are particularly important in areas where there is
documented evidence that vague standards have led to racially disparate govern-
ment intervention. Social science and medical research reveal a disturbing preva-
lence of race and class disproportionality with respect to when and how alleged
child abuse and neglect claims are reported to and handled by child welfare author-
ities. In 2006, the Casey-CSSP Alliance for Racial Equality in the Child Welfare
System undertook a comprehensive review of existing research studies regarding
race and class disproportionality in the child welfare system. It found that most re-
search suggests that race is strongly related to the rate of child welfare investiga-
tions and that child maltreatment is reported more often for low-income than mid-
dle- and upper-income families with similar presenting circumstances.5 More re-
cent studies show this disproportionality persisting.6 This data should provoke ex-
5 Casey-CSSP Alliance for Racial Equity in the Child Welfare System, Robert B. Hill, Synthesis of Research on Disproportionality in Child Welfare: An Update 1 (2006), at 18, 20, available at https ://www.cssp.org/reform/ child-welfare/ other-resources/synthesis-of-research-ondisproportionality-robert-hill. pdf 6 See Tina Lee, Processes of Racialization in New York City's Child Welfare System, 28 City & Society 276, 279 (2016) (providing statistics and citations). OCFS has itselfrecognized this problem. See NYS OCFS, The OCFS Initiative to Address Racial Disproportionality in Child
14
treme caution in the face of exhortations to loosen the standards that allow gov-
ernment intervention.
IL THE APPELLATE DIVISION'S DETERMINATION THAT NATASHA W. DID NOT MALTREAT HER CHILD WAS BASED ON A STRAIGHTFORWARD APPLICATION OF THE NICHOLSON STANDARD. OVERRULING THAT DETERMINATION RISKS SENDING THE MESSAGE TO LOWER COURTS THAT FINDINGS OF NEGLECT CAN BE BASED ON SPECULATIVE HARM OR A PER SE RULE.
A. Per se rules are inappropriate in the context of Neglect Cases Under Article 10 of the Family Court Act
This Court has made clear that per se rules are not appropriate in Article 10
neglect proceedings, directing in Nicholson that "each case is fact specific" and
must be decided based on the "multiple factors" at play in that particular case. Ni-
cholson, 3 N.Y.3d at 382-83. No per se rule establishing that a parent's condition
or status necessarily renders them neglectful is allowed. Id. at 377. A finding of
neglect requires a specific showing, by a preponderance of the evidence, of each
element mentioned in the statute. See FCA § 1012(f).
Nicholson instructs that the Family Court Act be read plainly, without read-
ing an "unacceptable presumption into the statute, contrary to its plain language."
Nicholson, 3 N.Y.3d at 368. The unacceptable presumption in Nicholson was
Welfare and Juvenile Justice, available at http://nycourts.gov/ip/casa/training/ocfsdisproportionality. pdf
15
ACS' s policy that the status of the mother as a victim of domestic violence, and the
fact that the child was exposed to that violence, established per se that the child
was neglected. Id. This Court made clear that the presumption is unacceptable be-
cause it did not require the court to make a fact-specific inquiry into whether the
child was in fact harmed or was in imminent risk of harm.
Since Nicholson, this Court has reiterated its rejection of the use of "a pre-
sumption of neglect" based on status. In Matter of Afton C., this Court reaffirmed
that a finding of neglect is only permissible "where a preponderance of the evi-
dence established actual or imminent harm to the subject children as a result of the
parent's failure to exercise a minimal degree of care." 17 N.Y.3d 1, 10 (2011). In
doing so, the Court rejected a per se rule that residing with a level three sex of-
fender who did not seek sex offender treatment put children at imminent risk, in-
sisting instead on a case-specific inquiry into the risk. Id. at 2.
Following this Court's rulings, lower courts have repeatedly rejected per se
definitions of neglect, as presumptive rules do not allow for the contextual analysis
required by Nicholson and Afton C. The Appellate Division and Family Courts
have rejected numerous such presumptions: a child left alone at a police station,
Matter of Jennifer N, 173 A.D.2d 971 (3d Dep't 1991); derivative neglect, In re
Andrew B.-L., 43 A.D.3d 1046 (2d Dep't 2007); a parent's developmental delay, In
re Summer Y.-T., 32 A.D.3d 212 (1st Dep't 2006); a parent's mental illness, Matter
16
of Alena 0., 220 A.D.2d 358 (1st Dep't 1995); a single incident of excessive cor-
poral punishment, In re Elizeo C., 19Misc.3dl112(A) (Kings Cty. Fam. Ct.
2007); a parent's conviction for endangering the welfare of a child, id.; a parent's
status as a level II sex offender, In re Hannah U, 97 A.D.3d 908 (3d Dep't 2012);
a parent's refusal to allow a caseworker to make a home visit, Matter of Black-
welder, 139 Misc.2d 776 (Cayuga Cty. Fam. Ct. 1988); a parent's violation of a
previous court order, In re Shannon ZZ., 8 A.D.3d 699 (3d Dept. 2004); In re Da-
vid G., 29 Misc.3d 1178 (Kings Cty. Fam. Ct. 2010); and a parent's conviction for
criminal possession of a controlled substance and a weapon, In re Peterson Chil-
dren, 185 Misc.2d 351 (Kings Cty. Fam. Ct. 2000).
The requirement of a fact-specific, case-by-case analysis plays a critical role
in preventing government overreach, particularly where there is significant risk of
prejudice.
B. The Appellate Division meticulously applied Nicholson to the facts of this case and provided effective guidance to lower courts on the dangers of subjective, speculative assessments of risk of harm to children.
The Appellate Division found that there was not evidence of harm or the
imminent risk of serious harm required for a finding of neglect under Nicholson.
Indeed, the majority underscored that the record reflected that ACS, which con-
ducted the investigation, had concluded that the child was not "likely to be in im-
17
mediate or impending danger of serious harm." Natasha W., 145 A.D.3d at 401.
Nonetheless, the Administrative Law Judge found that by using her son to shoplift,
Natasha W. had created "an imminent risk to the child's emotional condition in
that [the child] will not control his impulses and will proceed from accompanying
his mother in shoplifting to. doing it on his own." Id. at 404. This is exactly the type
of speculation about risk that Nicholson said could not be the basis for a finding of
neglect. The Appellate Division explained, "Instead of applying the correct legal
. standard to determine whether there was serious potential harm requiring the aid of
a court, the ALJ substituted his conjecture that the child might commit crimes in
the future." Id. at 408. In light of this explanation, it is difficult to imagine that the
Appellate Division's decision could be overturned without risk that lower courts
would conclude that they may rely on such subjective conjecture about risk.
Additionally, the Appellate Division majority emphasized the importance of
the Nicholson standard here because "[t]his is just the type of imposition of the
factfinder' s subjective views of parental behavior that the use of the higher eviden-
tiary standard was intended to correct." Id. at 408 (citations omitted). "No one dis-
agrees that what petitioner did was foolish and demonstrated poor judgment." Id. at
401. It is precisely when parental behavior invites harsh judgment that it is most
important to reign in subjective decision-making. See Nicholson, 3 N.Y.3d at 370
("the court's role is not as surrogate parent and the inquiry is not posed in absolute
18
terms of whether the parent has made the 'right' or 'wrong' decision") (citing Mat-
fer of Hofbauer, 47 N.Y.2d 648, 656 (1979)). As the U.S. Supreme Court and the
Second Circuit have warned, "such determinations [of child abuse and neglect] are
inherently inflammatory, and unusually open to the subjective values of the fact-
finder." Valmonte v. Bane, 18 F.3d 992, 1004 (2d Cir. 1994) (quoting Santosky v.
Kramer, 455 U.S. 745, 762 (1982)). As this Court emphasized, the neglect stand-
ard is intended to "ensure []that the [government] ... will focus on serious harm
or potential harm to the child, not just on what might be deemed undesirable paren-
tal behavior." Nicholson, 3 N.Y.3d at 369.
Although Appellants assert they are not seeking a per se rule, App. Reply
Br. at 1, 8, their attempts to overcome the subjective and speculative aspects of the
ALJ's conclusion veer repeatedly toward advocating just such a rule. They vari-
ously suggest that "a parent's use of a child as a tool in a crime" must constitute
maltreatment, App. Reply Br. at 14, and that "teaching a young child that stealing
is acceptable" constitutes maltreatment. Id. at 16-17, App. Br. at 41. Either of these
rules would dramatically broaden the grounds for a finding of maltreatment well
beyond current law. Worse, none of these proposals entails the case-specific in-
quiry Nicholson requires. 3 N.Y.3d at 371-372; see also In re Allen Children, 30
Misc.3d 634, 640-41 (Oswego Cty. Fam. Ct. 2010) ("where there is a lack of proof
of actual or imminent danger of physical, emotional or mental impairment to the
19
child, a parent's conviction for endangering the welfare of a child will not in and of
itself constitute the type of crime that results in a finding of neglect or abuse under
the doctrine of collateral estoppel").
In contrast, the court in In re Rashard D., 15 A.D.3d 209 (1st Dep't 2009)
- the only case cited by Appellants where a court made a finding of neglect or
abuse based on a parent stealing- conducted a fact-intensive inquiry, and relied
on specific evidence that the parent required the child to threaten use of a gun at a
bank, where there was a particular police procedure of entering with weapons
drawn, to make the fact-specific determination that the child faced a substantial
risk of physical injury. Id. at 210. The court did not rely on conjecture about what
could have happened, but rather had an evidentiary basis to make the specific find
ing it did.
To overturn the carefully reasoned decision of the Appellate Division and
impose a finding of maltreatment here, where there is no specific evidence of
imminent risk of harm, would send a dangerous message to lower courts, and
would undermine the critical gatekeeping role that the Nicholson definition of
neglect plays in Article 10 neglect proceedings.
CONCLUSION
For these reasons, Amici respectfully ask the Court to affirm the decision of
the Appellate Division.
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Dated: New York, New York March 20, 2018
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Respectfully submitted,
Christine Gottl Martin Gugge NYU Family Defense Clinic Washington Sq. Legal Services 245 Sullivan Street, 5th Floor New York, New York 10012 Tel.: (212) 998-6693 Fax: (212) 995-4031
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NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to 22 N.Y.C.R.R. Part 500.lG) that the foregoing brief
was prepared on a computer using Microsoft Word.
Type. A proportionally spaced typeface was used, as follows:
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statement, questions presented, statement of related cases, or any authorized
addendum containing statutes, rules, regulations, etc., is 4,909 words.
Dated: March 20, 2018
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~:~~ NYU Family Defense Clinic Washington Sq. Legal Services 245 Sullivan Street, 5th Floor New York, New York 10012 Tel.: (212) 998-6693 Fax: (212) 995-4031
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