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A battered woman’s failure to prevent her children from witnessing her own abuse does not automatically give protective agencies license to remove the child, the New York Court of Appeals ruled Tuesday in a groundbreaking opinion. The court, in response to three questions posed by a federal appellate panel, recognized that removing a child from home can be every bit as detrimental as allowing one to remain in a less-than-ideal environment. It said through Chief Judge Judith S. Kaye that domestic violence can indeed result in a child’s removal, but only after thorough examination and specific evidence of physical or emotional danger. Tuesday’s ruling in Nicholson v. Scoppetta, 113, appears to impose new burdens on both child welfare administrators and Family Court judges. It requires the assessment of individual cases and rejects a one-size-fits-all approach to the problem of domestic violence vis-�-vis its impact on children. The case began in the Eastern District federal court, where Judge Jack B. Weinstein enjoined the City of New York from removing children merely because they were witness to the abuse of their mothers. Weinstein held that removing children who witness abuse, without proof of physical or psychological harm, violates the constitutional safeguard against unreasonable searches and the right to due process. The ruling resulted in an interlocutory appeal to the 2nd U.S. Circuit Court of Appeals, which certified three questions to New York’s highest court: 1. 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?” Kaye responded: “We understand this question to ask whether a court … may find a respondent parent responsible for neglect based on evidence of two facts only: that the parent has been a victim of domestic violence, and that the child has been exposed to that violence. That question must be answered in the negative.” The court said the city or any agency claiming neglect on those grounds must show by a preponderance of the evidence that the child’s physical, mental or emotional health has been compromised or is in imminent jeopardy, and that the actual or potential harm is attributable to a parent’s failure to exercise a minimum degree of care. Kaye explained at length the type of circumstances that could warrant removal. For instance, she said, removal may be appropriate when children are repeatedly exposed to maternal abuse, officials intervene on several occasions and caseworkers testify to the actual fear and distress suffered by the children. “In such circumstances, the battered mother is charged with neglect not because she is a victim of domestic violence or because her children witnesses the abuse, but rather because a preponderance of the evidence establishes that the children were actually or imminently harmed by reason of her failure to exercise even minimal care in providing them with proper oversight,” Kaye wrote. The next question from the federal appeals court was: 2. 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 the act? The court interpreted that as asking whether an emotional injury from witnessing domestic violence can ever warrant removal based on an “imminent danger” or “risk” to a child’s health. Its answer: sometimes. “While we cannot say, for all future time, that the possibility can never exist, in the case of emotional injury — or, even more remotely, the risk of emotional injury — caused by witnessing domestic violence, it must be a rare circumstance in which the time would be so fleeting and the danger so great that emergency removal would be warranted,” the chief judge wrote. The final question was: 3. 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?” Particularized evidence is required, the court said. “[W]hen a court orders removal, particularized evidence must exist to justify the determination, including, where appropriate, evidence of efforts made to prevent or eliminate the need for removal and the impact of removal on the child,” Chief Judge Kaye wrote. CLAIMING VICTORY All sides claimed victory Tuesday. Advocates for women and children called the decision a landmark in New York and possibly nationwide, describing it as a hands-down victory for the federal class action plaintiffs. The city, which according to the plaintiffs has already settled 20 of the damage actions for amounts generally ranging from $100,000 to $200,000 including costs, said the ruling vindicates its practices and policies. “The district court said that even if a child was in danger of physical or emotional harm, it would not be appropriate to bring a neglect proceeding against the mother,” said Assistant Corporation Counsel Alan G. Krams, who represents the city. “The Court of Appeals said such proceedings may be proper in some cases.” Krams said the city will ask the 2nd Circuit to lift the injunction imposed by Judge Weinstein and allow it to remove children from abusive households. “In the overwhelming majority of cases involving domestic violence, [the city Administration for Children's Services] takes no action at all,” Krams said. “The evidence placed before the district court showed that 88 percent of the time no court action is taken because [the city] works with the family.” However, Kaye observed in a footnote that a child protective manager had testified that authorities commonly removed children in domestic violence cases and then procrastinated going to court because “after a few days of the children being in foster care, the mother will usually agree” to any conditions the city demands. GUIDELINES FOR REMOVAL David J. Lansner of Lansner & Kubitschek in Manhattan, who represents the mothers along with the Sanctuary for Families, said the Court rejected the approach of other tribunals that had espoused a preference to err on the side of removal. “The Court’s decision … sets very clear guidelines for the Family Court,” he said. “It will require that child protective services do more thorough investigations and make more attempts to provide services and avoid removal. It will make more work for the Family Court judges because they will have to hold full hearings without relying on any presumption in removing children, but the effect will be much better for the children.” Judith D. Waksberg and Barrie L. Goldstein of the Legal Aid Society in Manhattan represent the children. “We are most pleased the Court has really focused on the child and the impact on the child of removal and stated unequivocally that there is a delicate balancing that has to take place when determining whether removal is appropriate,” Waksberg said. “There are no other cases that talk about removal in that way and discuss the balancing that needs to take place.” Richard Wexler, executive director of the National Coalition for Child Protection Reform, one of 10 advocacy organizations appearing amicus curiae on the case, said the ruling “represents a huge victory for New York’s most vulnerable children.” Wexler said the Court’s recognition of the harm that can result from removal is crucial. “What the Court has told child welfare agencies can be boiled down to what every doctor is supposed to learn in medical school: First, do no harm,” he said.

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