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New York City and advocates for battered women and their children agreed in court Tuesday that child welfare officials have no right to remove children simply because they witnessed the abuse of their mother. In a widely watched case argued Tuesday at the Court of Appeals, Nicholson v. Scoppetta, 113, attorneys seemed to agree more than disagree. They agreed that the city cannot presume a mother is neglectful and that removal is the proper course of action merely because she did not prevent her children from witnessing abuse inflicted on her by a husband or boyfriend. They agreed that the matters must be decided on a case-by-case basis. And they agreed that further evidence of physical or emotional danger to the children must exist before authorities can take such drastic action as placing the children in protective foster care. Where they differed was on the relatively nuanced point of whether authorities can, without judicial oversight, ever remove a child because of domestic violence in the home. “I am struggling to understand where we fit into this,” Chief Judge Kaye commented. Nicholson v. Scoppetta came to Albany, N.Y., via the federal courts, where Eastern District Judge Jack B. Weinstein enjoined the city in a class action from doing what it says it does not do anyway — systematically removing children because they saw their mother being beaten. After Weinstein’s ruling, the matter went to the 2nd U.S. Circuit Court of Appeals, which certified three questions to New York’s highest court. The questions were: � Does the definition of a “neglected child” in the Family Court Act include “instances in which the sole allegation of neglect is that the parent” or guardian “allows the child to witness domestic abuse against the caretaker?” � Can the harm or potential harm suffered by a child who witnesses domestic abuse constitute a “danger” or “risk” to the child’s life or health as defined in the act? � Is the fact that the child witnessed abuse sufficient to show that removal is necessary and in the best interests of the child, or “must the child protective agency offer additional, particularized evidence to justify removal?” During Tuesday’s lengthy arguments, it became apparent that the main focus is on the second question. There was little debate among the three attorneys that a child is not automatically “neglected” if a mother does not prevent him or her from witnessing domestic violence. There was also little dispute that particularlized evidence is necessary to warrant removal. “I suppose we are all in agreement here that if a woman whose only sin in life is she is being beaten by someone with whom she is living, that for her pains in reporting it she shouldn’t in addition lose custody of the child,” Judge Albert M. Rosenblatt said. “We are all in agreement … that any such prospect would be disturbing and even appalling.” DEFINING NEGLECT The city’s attorney, Assistant Corporation Counsel Alan G. Krams barely got beyond “may it please the Court” when he was hit with a question from the chief judge. “Does the definition of a neglected child under New York law include instances in which the sole allegation of neglect is that the parent … allows the children to witness abuse?” Kaye asked. “Sole allegation.” Krams said the fundamental underlying question centers on the extent, if any, to which New York law allows neglect proceedings against battered parents, and the standards for taking action. “From the whole context of the 2nd Circuit’s decision, you can see in it a concern over where the boundaries are and whether New York makes decisions of this kind by presumption, which caused the 2nd Circuit some concern … or whether it does it in a fact-specific way,” Krams said. Krams stressed that the city has never had a policy of summarily whisking children from homes where domestic violence occurs. However, he also acknowledged, in response to a comment from Judge Robert S. Smith regarding “horror stories” of children summarily taken from abused mothers, that mistakes have occurred. “So where do you depart from the other side?” asked Judge Carmen Beauchamp Ciparick. Rosenblatt added: “I am having difficulty [understanding] where your points of contact and collision are with the other side, because there is a lot of overlap and there seems to be a lot of accord. … What do you see as your major point of collision?” The answer to that became clearest when David J. Lansner of Lansner & Kubitschek in Manhattan, appearing for the mothers, addressed the court. Lansner argued that the city should be barred from ever removing a child for witnessing domestic violence, unless a court has found that the child is in imminent danger. “Never?” Kaye asked, expressing concern over whether there is always enough time to get a court order to remove a child. “You can get a court order in a matter of two hours,” Lansner started to respond. “Sometimes,” Kaye interrupted. “Sometimes you can’t.” CHILD AT RISK Judith D. Waksberg of the Legal Aid Society in Manhattan, arguing for the respondent children, urged the court to adopt a flexible rule in which children can be removed for witnessing domestic violence, but only in extraordinary cases when it is clear that their continued presence in the home constitutes an immediate threat to their well being. That suggestion seemed to sit well with the court. Waksberg, however, said that a rule such as the one she is proposing must be accompanied with guidance from the court. She suggested a three-step process in which officials: first determine if the potential risk to the child is so immediate that action cannot wait for judicial intervention; next determine if the threat is so profound that it outweighs the trauma of removal; finally, determine that there are no less drastic remedies available to protect the child. But while the court seemed receptive to the solution offered by Waksberg, it seemed uncertain whether embracing that paradigm would address the three certified questions. “What you suggest is interesting,” Kaye said to Waksberg, “but what do we do with the questions that have been certified to us?”

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