USCOA,2 No. 113
Sharwline Nicholson, &c. et al.,
Respondents,
v.
Nicholas Scoppetta, &c., et al.,
Appellants. Nat Williams, et al.,
Defendants.
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2004 NY Int. 119
October 26, 2004
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Alan G. Krams, for appellants.
David J. Lansner, for Subclass A respondents.
Judith Waksberg for Subclass B respondents.
National Coalition Against Domestic Violence, et al.; National Network to End Domestic Violence, Inc., et
al.; New York State Coalition Against Domestic Violence, et al.; Pennsylvania Coalition Against Domestic
Violence, et al.; Legal Momentum, et al.; The Appellate Advocacy Network, et al.; The Center for Family
Representation, Inc.; New York Legal Assistance Group, et al.; Wilbur McReynolds; Ohio Domestic
Violence Network, et al.; Joseph L. Woolston, M.D., et al., amici curiæ.
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KAYE, CHIEF JUDGE:
In this federal class action, the United States Court of Appeals for the Second Circuit has certified three
questions centered on New York's statutory scheme for child protective proceedings. The action is
brought on behalf of mothers and their children who were separated because the mother had suffered
domestic violence, to which the children were exposed, and the children were for that reason deemed
neglected by her.
In April 2000, Sharwline Nicholson, on behalf of herself and her two children, brought an action pursuant
to 42 USC § 1983, against the New York City Administration for Children's Services (ACS).[1] The action
was later consolidated with similar complaints by Sharlene Tillet and Ekaete Udoh_-the three named
plaintiff-mothers. Plaintiffs alleged that ACS, as a matter of policy, removed children from mothers who
were victims of domestic violence because, as victims, they "engaged in domestic violence" and that
defendants removed and detained children without probable cause and without due process of law. That
policy, and its implementation--according to plaintiff- mothers--constituted, among other wrongs, an
unlawful interference with their liberty interest in the care and custody of their children in violation of the
United States Constitution.
In August 2001, the United States District Court for the Eastern District of New York certified two
subclasses: battered custodial parents (Subclass A), and their children (Subclass B) ( Nicholson v
Williams, 205 FRD 92, 95, 100 [ED NY 2001]). For each plaintiff, at least one ground for removal was
that the custodial mother had been assaulted by an intimate partner and failed to protect the child or
children from exposure to that domestic violence.
In January 2002, the District Court granted a preliminary injunction, concluding that the City "may not
penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her
children; nor may children be separated from the mother, in effect visiting upon them the sins of their
mother's batterer" ( In re Nicholson, 181 F Supp 2d 182, 188 [ED NY Jan. 20, 2002]; see also Nicholson
v Williams, 203 F Supp 2d 153 [ED NY Mar. 18, 2002] [108-page elaboration of grounds for injunction]).
The court found that ACS unnecessarily, routinely charged mothers with neglect and removed their
children where the mothers--who had engaged in no violence themselves--had been the victims of
domestic violence; that ACS did so without ensuring that the mother had access to the services she
needed, without a court order, and without returning these children promptly after being ordered to do so
by the court;[2] that ACS caseworkers and case managers lacked adequate training about domestic
violence, and their practice was to separate mother and child when less harmful alternatives were
available; that the agency's written policies offered contradictory guidance or no guidance at all on these
issues; and that none of the reform plans submitted by ACS could reasonably have been expected to
resolve the problems within the next year (203 F Supp 2d at 228-229).
The District Court concluded that ACS's practices and policies violated both the substantive due process
rights of mothers and children not to be separated by the government unless the parent is unfit to care
for the child, and their procedural due process rights (181 F Supp 2d at 185). The injunction, in relevant
part, "prohibit[ed] ACS from carrying out ex parte removals 'solely because the mother is the victim of
domestic violence,' or from filing an Article Ten petition seeking removal on that basis" ( Nicholson v
Scoppetta, 344 F3d 154, 164 [2d Cir 2003] [internal citations omitted]).[3]
On appeal, the Second Circuit held that the District Court had not abused its discretion in concluding
that ACS's practice of effecting removals based on a parent's failure to prevent his or her child from
witnessing domestic violence against the parent amounted to a policy or custom of ACS, that in some
circumstances the removals may raise serious questions of federal constitutional law, and that the
alleged constitutional violations, if any, were at least plausibly attributable to the City (344 F3d at
165-167, 171-176).[4] The Court hesitated, however, before reaching the constitutional questions,
believing that resolution of uncertain issues of New York statutory law would avoid, or significantly
modify, the substantial federal constitutional issues presented ( id. at 176).
Given the strong preference for avoiding unnecessary constitutional adjudication, the importance of child
protection to New York State and the integral part New York courts play in the removal process, the
Second Circuit, by three certified questions, chose to put the open state statutory law issues to us for
resolution. We accepted certification (1 3 538 2003]), and now proceed to answer those questions.[5]
Certified Question No. 1: Neglect
"Does the definition of a 'neglected child' under N.Y. Family Ct. Act § 1012(f), (h) 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?"
We understand this question to ask whether a court reviewing an Article 10 petition may find a
respondent parent responsible for neglect based on evidence of two facts only: that the parent has been
the victim of domestic violence, and that the child has been exposed to that violence. That question must
be answered in the negative. Plainly, more is required for a showing of neglect under New York law than
the fact that a child was exposed to domestic abuse against the caretaker. Answering the question in the
affirmative, moreover, would read an unacceptable presumption into the statute, contrary to its plain
language.
Family Court Act § 1012 (f) is explicit in identifying the elements that must be shown to support a finding
of neglect. As relevant here, it defines a "neglected child" to mean:
"a child less than eighteen years of age (i) 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 . . .
"(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing
to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal
punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he
loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the
court."
Thus, a party seeking to establish neglect must show, by a preponderance of the evidence ( see Family
Ct Act § 1046 [b] [i]), first, that a child's physical, mental or emotional condition has been impaired or is
in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is
a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in
providing the child with proper supervision or guardianship. 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" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A,
Family Ct Act § 1012 at 320, [1999 ed]).
The first statutory element requires proof of actual (or imminent danger of) physical, emotional or mental
impairment to the child ( see Nassau County Dept. of Social Servs. on behalf of Dante M. v Denise J., ,
87 NY2d 73, 78-79 [1995]). This prerequisite to a finding of neglect 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" reflects the
Legislature's judgment that a finding of neglect may be appropriate even when a child has not actually
been harmed; "imminent danger of impairment to a child is an independent and separate ground on
which a neglect finding may be based" ( Dante M., 87 NY2d at 79). Imminent danger, however, must be
near or impending, not merely possible.
In each case, additionally, there must be a link or causal connection between the basis for the neglect
petition and the circumstances that allegedly produce the child's impairment or imminent danger of
impairment. In Dante M., for example, we held that the Family Court erred in concluding that a newborn's
positive toxicology for a controlled substance alone was sufficient to support a finding of neglect because
the report, in and of itself, did not prove that the child was impaired or in imminent danger of becoming
impaired (87 2 at 79). We reasoned, "[r]elying solely on a positive toxicology result for a neglect
determination fails to make the necessary causative connection to all the surrounding circumstances that
may or may not produce impairment or imminent risk of impairment in the newborn child" ( id.). The
positive toxicology report, in conjunction with other evidence--such as the mother's history of inability to
care for her children because of her drug use, testimony of relatives that she was high on cocaine during
her pregnancy and the mother's failure to testify at the neglect hearing--supported a finding of neglect
and established a link between the report and physical impairment.
The cases at bar concern, in particular, alleged threats to the child's emotional, or mental, health. The
statute specifically defines "impairment of emotional health" and "impairment of mental or emotional
condition" to include
"a state of substantially diminished psychological or intellectual functioning in relation to, but not limited
to, such factors as failure to thrive, control of aggressive or self-destructive impulses, ability to think and
reason, or acting out or misbehavior, including incorrigibility, ungovernability or habitual truancy"
(Family Ct Act § 1012 [h]). Under New York law, "such impairment must be clearly attributable to the
unwillingness or inability of the respondent to exercise a minimum degree of care toward the child" ( id.).
Here, the Legislature recognized that the source of emotional or mental impairment--unlike physical
injury--may be murky, and that it is unjust to fault a parent too readily. The Legislature therefore
specified that such impairment be "clearly attributable" to the parent's failure to exercise the requisite
degree of care.
Assuming that actual or imminent danger to the child has been shown, "neglect" also requires proof of
the parent's failure to exercise a minimum degree of care. As the Second Circuit observed, "a
fundamental interpretive question is what conduct satisfies the broad, tort-like phrase, 'a minimum
degree of care.' The Court of Appeals has not yet addressed that question, which would be critical to
defining appropriate parental behavior" (344 F3d at 169).
"Minimum degree of care" is a "baseline of proper care for children that all parents, regardless of lifestyle
or social or economic position, must meet" (Besharov, at 326). Notably, the statutory test is " minimum
degree of care"--not maximum, not best, not ideal--and the failure must be actual, not threatened ( see
e.g. Matter of Hofbauer, , 47 NY2d 648, 656 1979] [recognizing, in the context of medical neglect, the
court's role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the
parent has made the "right" or "wrong" decision]).
Courts must evaluate parental behavior objectively: would a reasonable and prudent parent have so
acted, or failed to act, under the circumstances then and there existing ( see Matter of Jessica YY., 258
AD2d 743, 744 [3d Dept 1999]). The standard takes into account the special vulnerabilities of the child,
even where general physical health is not implicated ( see Matter of Sayeh R., , 91 NY2d 306, 315, 317
[1997] [mother's decision to demand immediate return of her traumatized children without regard to their
need for counseling and related services "could well be found to represent precisely the kind of failure
'to exercise a minimum degree of care' that our neglect statute contemplates"]). Thus, when the inquiry is
whether a mother_-and domestic violence victim--failed to exercise a minimum degree of care, the focus
must be on whether she has met the standard of the reasonable and prudent person in similar
circumstances.
As the Subclass A members point out, for a battered mother--and ultimately for a court--what course of
action constitutes a parent's exercise of a "minimum degree of care" may include such considerations as:
risks attendant to leaving, if the batterer has threatened to kill her if she does; risks attendant to staying
and suffering continued abuse; risks attendant to seeking assistance through government channels,
potentially increasing the danger to herself and her children; risks attendant to criminal prosecution
against the abuser; and risks attendant to relocation.[6] Whether a particular mother in these
circumstances has actually failed to exercise a minimum degree of care is necessarily dependent on
facts such as the severity and frequency of the violence, and the resources and options available to her
( see Matter of Melissa U., 148 AD2d 862 [3d Dept 1989]; Matter of James MM. v June OO., 294 AD2d
630 [3d Dept 2002]).
Only when a petitioner demonstrates, by a preponderance of evidence, that both elements of section
1012 (f) are satisfied may a child be deemed neglected under the statute. When "the sole allegation" is
that the mother has been abused and the child has witnessed the abuse, such a showing has not been
made. This does not mean, however, that a child can never be "neglected" when living in a household
plagued by domestic violence. Conceivably, neglect might be found where a record establishes that, for
example, the mother acknowledged that the children knew of repeated domestic violence by her
paramour and had reason to be afraid of him, yet nonetheless allowed him several times to return to her
home, and lacked awareness of any impact of the violence on the children, as in Matter of James MM.,
294 AD2d at 632; or where the children were exposed to regular and continuous extremely violent
conduct between their parents, several times requiring official intervention, and where caseworkers
testified to the fear and distress the children were experiencing as a result of their long exposure to the
violence ( Matter of Theresa CC., 178 AD2d 687 [3d Dept 1991]).
In such circumstances, the battered mother is charged with neglect not because she is a victim of
domestic violence or because her children witnessed 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.
Certified Question No. 2: Removals
Next, we are called upon to focus on removals by ACS, in answering the question:
"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 in the N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?"
The cited Family Court Act sections relate to the removal of a child from home. Thus, in essence, we are
asked to decide whether emotional injury from witnessing domestic violence can rise to a level that
establishes an "imminent danger" or "risk" to a child's life or health, so that removal is appropriate either
in an emergency or by court order.
While we do not reach the constitutional questions, it is helpful in framing the statutory issues to note the
Second Circuit's outline of the federal constitutional questions relating to removals. Their questions
emerge in large measure from the District Court's findings of an "agency-wide practice of removing
children from their mother without evidence of a mother's neglect and without seeking prior judicial
approval" (203 F Supp 2d at 215), and Family Court review of removals that "often fails to provide
mothers and children with an effective avenue for timely relief from ACS mistakes" ( id. at 221).
Specifically, as to ex parte removals, the Circuit Court identified procedural due process and Fourth
Amendment questions focused on whether danger to a child could encompass emotional trauma from
witnessing domestic violence against a parent, warranting emergency removal. Discussing the
procedural due process question, the Court remarked that: "there is a strong possibility that if New York
law does not authorize ex parte removals, our opinion in Tenenbaum at least arguably could weigh in
favor of finding a procedural due process violation in certain circumstances. If New York law does
authorize such removals, Tenenbaum likely does not prohibit us from deferring to that judgment. In either
case, the underlying New York procedural rules will also be an important component of our balancing.
Thus, the state-law question of statutory interpretation will either render unnecessary, or at least
substantially modify, the federal constitutional question" (344 F3d at 172).[7]
The Court also questioned whether "in the context of the seizure of a child by a state protective agency
the Fourth Amendment might impose any additional restrictions above and beyond those that apply to
ordinary arrests" ( id. at 173).
As to court-ordered removals, the Second Circuit recognized challenges based on substantive due
process, procedural due process--the antecedent of Certified Question No. 3--and the Fourth
Amendment. The substantive due process question concerned whether the City had offered a
reasonable justification for the removals. The Second Circuit observed that "there is a substantial Fourth
Amendment question presented if New York law does not authorize removals in the circumstances
alleged" ( id. at 176).
Finally, in certifying the questions to us, the Court explained that:
"[t]here is . . . some ambiguity in the statutory language authorizing removals pending a final
determination of status. Following an emergency removal, whether ex parte or by court order, the Family
Court must return a removed child to the parent's custody absent 'an imminent risk' or 'imminent danger'
to 'the child's life or health.' At the same time, the Family Court must consider the 'best interests of the
child' in assessing whether continuing removal is necessary to prevent threats to the child's life or health.
Additionally, in order to support removal, the Family Court must 'find[] that removal is necessary to avoid
imminent risk. How these provisions should be harmonized seems to us to be the province of the Court of
Appeals'" (344 F3d at 169 [internal citations omitted]).
The Circuit Court summarized the policy challenged by plaintiffs and found by the District Court as "the
alleged practice of removals based on a theory that allowing one's child to witness ongoing domestic
violence is a form of neglect, either simply because such conduct is presumptively neglectful or because
in individual circumstances it is shown to threaten the child's physical or emotional health" ( id. at 166 n
5).
It is this policy, viewed in light of the District Court's factual findings, that informs our analysis of Certified
Question No. 2. In so doing, we acknowledge the Legislature'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" ( see Mark G. v Sabol, , 93
NY2d 710, 719 [1999] [construing Child Welfare Reform Act of 1979 [L 1979, chs 610, 611]). We further
acknowledge the legislative findings, made pursuant to the Family Protection and Domestic Violence
Intervention Act of 1994, that
"the corrosive effect of domestic violence is far reaching. The batterer's violence injures children both
directly and indirectly. Abuse of a parent is detrimental to children whether or not they are physically
abused themselves. Children who witness domestic violence are more likely to experience delayed
development, feelings of fear, depression and helplessness and are more likely to become batterers
themselves" (L 1994, ch 222, § 1; see also People v Wood, , 95 NY2d 509, 512 [2000] [though involving
a batterer, not a victim]).
These legislative findings represent two fundamental-- sometimes conflicting--principles. New York has
long embraced a policy of keeping "biological families together" ( Matter of Marino S., Jr., , 100 NY2d
361, 372 [2003]). Yet "when a child's best interests are endangered, such objectives must yield to the
State's paramount concern for the health and safety of the child" ( id. at 372).
As we concluded in response to Certified Question No. 1, exposing a child to domestic violence is not
presumptively neglectful. Not every child exposed to domestic violence is at risk of impairment. A fortiori,
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. Part 2 of Article 10 of the Family Court Act sets forth four ways
in which a child may be removed from the home in response to an allegation of neglect (or abuse)
related to domestic violence: 1) temporary removal with consent; 2) preliminary orders after a petition is
filed; 3) preliminary orders before a petition is filed; and 4) emergency removal without a court order.
The issue before us is whether emotional harm suffered by a child exposed to domestic violence, where
shown, can warrant the trauma of removal under any of these provisions.
The Practice Commentaries state, and we agree, that the sections of Article 10, Part 2 create a
"continuum of consent and urgency and mandate a hierarchy of required review" before a child is
removed from home ( see Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A,
Family Ct Act § 1021 at 5 [1999 ed]). Consent Removal
First, section 1021 provides that a child may be removed "from the place where he is residing with the
written consent of his parent or other person legally responsible for his care, if the child is an abused or
neglected child under this article" (Family Court Act § 1021; see Tenenbaum v Williams, 193 Matter of
Jonathan P., 283 AD2d 675 [3d Dept 2001]). This section is significant because "many parents are
willing and able to understand the need to place the child outside the home and because resort to
unnecessary legal coercion can be detrimental to later treatment efforts" (Besharov, at 6). Post-Petition
Removal
If parental consent cannot be obtained, section 1027, at issue here, provides for preliminary orders after
the filing of a neglect (or abuse) petition. Thus, according to the statutory continuum, where the
circumstances are not so exigent, the agency should bring a petition and seek a hearing prior to removal
of the child. In any case involving abuse--or in any case where the child has already been removed
without a court order--the Family Court must hold a hearing as soon as practicable after the filing of a
petition, to determine whether the child's interests require protection pending a final order of disposition
(Family Ct Act § 1027 [a]). As is relevant here, the section further provides that in any other
circumstance (such as a neglect case), after the petition is filed any person originating the proceeding
(or the Law Guardian) may apply for-- or the court on its own may order--a hearing to determine whether
the child's interests require protection, pending a final order of disposition ( id.).[8]
For example, in Matter of Adam DD. (112 2 493 [3d Dept 1985]), after filing a child neglect petition,
petitioner Washington County Department of Social Services sought an order under section 1027. At a
hearing, evidence demonstrated that respondent-mother had told her son on several occasions that she
intended to kill herself, and Family Court directed that custody be placed with petitioner on a temporary
basis for two months. At the subsequent dispositional hearing, a psychiatrist testified that respondent
was suffering from a type of paranoid schizophrenia that endangered the well-being of the child, and
recommended the continued placement with petitioner. A second psychiatrist concurred. The Appellate
Division concluded that the record afforded a basis for Family Court to find neglect because of possible
impairment of the child's emotional health, and continued placement of the child with petitioner.
While not a domestic violence case, Matter of Adam DD. is instructive because it concerns steps taken in
the circumstance where a child is emotionally harmed by parental behavior. The parent's repeated
threats of suicide caused emotional harm that could be akin to the experience of a child who witnesses
repeated episodes of domestic violence perpetrated against a parent. In this circumstance, the agency
did not immediately remove the child, but proceeded with the filing of a petition and a hearing.
Upon such a hearing, if the court finds that removal is necessary to avoid imminent risk to the child's life
or health, it is required to remove or continue the removal and remand the child to a place approved by
the agency (Family Ct Act § 1027 [b] [i]). In undertaking this inquiry, the statute also requires the court
to consider and determine whether continuation in the child's home would be contrary to the best
interests of the child ( id.).[9]
The Circuit Court has asked us to harmonize the "best interests" test with the calculus concerning
"imminent risk" and "imminent danger" to "life or health" (344 F3d at 169). In order to justify a finding of
imminent risk to life or health, the agency need not prove that the child has suffered actual injury ( see
Matter of Kimberly H., 242 AD2d 35, 38 [1st Dept 1998]). Rather, the court engages in a fact-intensive
inquiry to determine whether the child's emotional health is at risk. Section 1012 (h), moreover, sets forth
specific factors, evidence of which may demonstrate "substantially diminished psychological or
intellectual functioning" ( see also Matter of Sayeh R., , 91 NY2d 306, 314-316 [1997]; Nassau County
Dept. of Social Servs. on behalf of Dante M. v Denise J., , 87 NY2d 73, 78-79 [1995]). As noted in our
discussion of Certified Question No. 1, section 1012 (h) contains the caveat that impairment of emotional
health must be "clearly attributable to the unwillingness or inability of the respondent to exercise a
minimum degree of care toward the child" ( see Matter of Theresa CC., 178 AD2d 687 [3d Dept 1991]).
Importantly, in 1988, the Legislature added the "best interests" requirement to the statute, as well as the
requirement that reasonable efforts be made "to prevent or eliminate the need for removal of the child
from the home" (L 1988, ch 478, § 5).[10] These changes were apparently necessary to comport with
federal requirements under Title IV-E of the Social Security Act (42 USC § 670-679a), which mandated
that federal "foster care maintenance payments may be made on behalf of otherwise eligible children
who were removed from the home of a specified relative pursuant to a voluntary placement agreement,
or as the result of a 'judicial determination to the effect that continuation therein would be contrary to the
welfare of the child and . . . that reasonable efforts [to prevent the need for removal] have been made'"
(Policy Interpretation Question of the United States Department of Health and Human Services, May 3,
1985, Bill Jacket, L 1988, ch 478, at 32-33). The measures "ensure[d] that children involved in the early
stages of child protective proceedings and their families receive appropriate services to prevent the
children's removal from their homes whenever possible" (Mem from Cesar A. Perales to Evan A. Davis,
Counsel to the Governor, July 27, 1988, Bill Jacket, L 1988, ch 478, at 14).
By contrast, the City at the time took the position that
"the mixing of the standards 'best interest of the child' and 'imminent risk' is confusing. It makes no sense
for a court to determine as part of an 'imminent risk' decision, what is in the 'best interest of the child.' If
the child is in 'imminent risk', his/her 'best interest' is removal from the home. A 'best interest'
determination is more appropriately made after an investigation and a report have been completed and
all the facts are available" (Letter from Legislative Representative James Brennan, The City of New York
Office of the Mayor to Governor Mario M. Cuomo, July 27, 1988, Bill Jacket, L 1988, ch 478, at 23).
In this litigation, the City posits that the "best interests" determination is part of the Family Court's
conclusion that there is imminent risk warranting removal, and concedes that whether a child will be
harmed by the removal is a relevant consideration. The City thus recognizes that the questions facing a
Family Court judge in the removal context are extraordinarily complex. As the Circuit Court observed, "it
could be argued that the exigencies of the moment that threaten the welfare of a child justify removal. On
the other hand, a blanket presumption in favor of removal may not fairly capture the nuances of each
family situation" (344 F3d at 174).
The plain language of the section and the legislative history supporting it establish that a blanket
presumption favoring removal was never intended. 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.
Additionally, the court must specifically consider whether imminent risk to the child might be eliminated by
other means, such as issuing a temporary order of protection or providing services to the victim (Family
Ct Act § 1027 [b] [iv]). The Committee Bill Memorandum supporting this legislation explains the intent to
address the situation "[w]here one parent is abusive but the child may safely reside at home with the
other parent, the abuser should be removed. This will spare children the trauma of removal and
placement in foster care" (Mem of Children and Families Standing Comm, Bill Jacket, L 1989, ch 727, at
7).
These legislative concerns were met, for example, in Matter of Naomi R. (296 2 503 [2d Dept 2002]),
where, following a hearing pursuant to section 1027, Family Court issued a temporary order of protection
against a father, excluding him from the home, on the ground that he allegedly sexually abused one of
his four children. Evidence established that the father's return to the home, even under the mother's
supervision, would present an imminent risk to the health and safety of all of the children. Thus, pending
a full fact-finding hearing, Family Court took the step of maintaining the integrity of the family unit and
instead removed the abuser. Ex Parte Removal by Court Order
If the agency believes that there is insufficient time to file a petition, the next step on the continuum
should not be emergency removal, but ex parte removal by court order ( see e.g. Nassau County Dept.
of Social Servs. on behalf of Dante M. v Denise J., , 87 NY2d 73 [1995]). Section 1022 of the Family
Court Act provides that the court may enter an order directing the temporary removal of a child from
home before the filing of a petition if three factors are met.
First, the parent must be absent or, if present, must have been asked and refused to consent to
temporary removal of the child and must have been informed of an intent to apply for an order. Second,
the child must appear to suffer from abuse or neglect of a parent or other person legally responsible for
the child's care to the extent that immediate removal is necessary to avoid imminent danger to the child's
life or health. Third, there must be insufficient time to file a petition and hold a preliminary hearing.
Just as in a section 1027 inquiry, the court must consider whether continuation in the child's home would
be contrary to the best interests of the child; whether reasonable efforts were made prior to prevent or
eliminate the need for removal from the home; and whether imminent risk to the child would be eliminated
by the issuance of a temporary order of protection directing the removal of the person from the child's
residence.[11] Here, the court must engage in a fact-finding inquiry into whether the child is at risk and
appears to suffer from neglect.
The Practice Commentaries suggest that section 1022 may be unfamiliar, or seem unnecessary, to
those in practice in New York City, "where it is common to take emergency protective action without prior
court review" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act
§ 1022 at 10, [1999 ed]). If, as the District Court's findings suggest, this was done in cases where a court
order could be obtained, the practice contravenes the statute. Section 1022 ensures that in most urgent
situations, there will be judicial oversight in order to prevent well-meaning but misguided removals that
may harm the child more than help. As the comment to the predecessor statute stated, "this section . . .
[is] designed to avoid a premature removal of a child from his home by establishing a procedure for early
judicial determination of urgent need" (Committee Comments, Family Ct Act repealed § 322 [1963]).
Whether analyzing a removal application under section 1027 or 1022, or an application for a child's
return under section 1028, a court must engage in a balancing test of the imminent risk with the best
interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing
removal. The term "safer course" ( see e.g. Matter of Kimberly H., 242 AD2d 35 [1st Dept 1998]; Matter
of Tantalyn TT., 115 AD2d 799 [3d Dept 1985]) should not be used to mask a dearth of evidence or as a
watered-down, impermissible presumption. Emergency Removal Without Court Order
Finally, section 1024 provides for emergency removals without a court order. The section permits
removal without a court order and without consent of the parent if there is reasonable cause to believe
that the child is in such urgent circumstance or condition that continuing in the home or care of the
parent presents an imminent danger to the child's life or health, and there is not enough time to apply for
an order under section 1022 (Family Ct Act § 1024 [a]; see generally Matter of Joseph DD., 300 AD2d
760, 761 n 1 [3d Dept 2002] [noting that removal under such emergency circumstances requires the
filing of an Article 10 petition "forthwith" and prompt court review of the nonjudicial decision pursuant to
Family Ct Act § 1026 (c) and § 1028]; see also Matter of Karla V., 278 AD2d 159 [1st Dept 2000]). Thus,
emergency removal is appropriate where the danger is so immediate, so urgent that the child's life or
safety will be at risk before an ex parte order can be obtained. The standard obviously is a stringent one.
Section 1024 establishes an objective test, whether the child is in such circumstance or condition that
remaining in the home presents imminent danger to life or health.[12] In construing "imminent danger"
under section 1024, it has been held that whether a child is in "imminent danger" is necessarily a fact-
intensive determination. "It is not required that the child be injured in the presence of a caseworker nor is
it necessary for the alleged abuser to be present at the time the child is taken from the home. It is
sufficient if the officials have persuasive evidence of serious ongoing abuse and, based upon the best
investigation reasonably possible under the circumstances, have reason to fear imminent recurrence" (
Gottlieb v County of Orange, 871 F Supp 625, 628-629 [SD NY 1994], citing Robison v Via, 821 [13]
Certified Question No. 3: Process
Finally, the Second Circuit asks us:
"Does the fact that the child witnessed such abuse suffice to demonstrate that 'removal is necessary,'
N.Y. Family Ct. Act §§ 1022, 1024, 1027, or that 'removal was in the child's best interests,' N.Y. Family
Ct. Act §§ 1028, 1052(b)(i)(A), or must the child protective agency offer additional, particularized
evidence to justify removal?"
The Circuit Court has before it the procedural due process question whether, if New York law permits a
presumption that removal is appropriate based on the witnessing of domestic violence, that presumption
would comport with Stanley v Illinois (405 US 645 [1972] [recognizing a father's procedural due process
interest in an individualized determination of fitness]). All parties maintain, however, and we concur, that
under the Family Court Act, there can be no "blanket presumption" favoring removal when a child
witnesses domestic violence, and that each case is fact-specific. As demonstrated in our discussion of
Certified Question No. 2, 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.
The Circuit Court points to two cases in which removals occurred based on domestic violence without
corresponding expert testimony on the appropriateness of removal in the particular circumstance (
Matter of Carlos M., 293 AD2d 617 [2d Dept 2002]; Matter of Lonell J., Jr., 242 AD2d 58 [1st Dept
1998]). Both cases were reviewed on the issue whether there was sufficient evidence to support a
finding of neglect. In Carlos M., the evidence showed a 12-year history of domestic violence between the
parents which was not only witnessed by the children but also often actually spurred their intervention. In
Lonell J., Jr., caseworkers testified at a fact-finding hearing about the domestic violence perpetrated by
the children's father against their mother, as well as the unsanitary condition of the home and the
children's poor health.
We do not read Carlos M. or Lonell J., Jr. as supportive of a presumption that if a child has witnessed
domestic violence, the child has been harmed and removal is appropriate. That presumption would be
impermissible. In each case, multiple factors formed the basis for intervention and determinations of
neglect. As the First Department concluded in Lonell J., Jr., moreover, "nothing in section 1012 itself
requires expert testimony, as opposed to other convincing evidence of neglect" (242 2 at 61). Indeed,
under section 1046 (a) (viii), which sets forth the evidentiary standards for abuse and neglect hearings,
competent expert testimony on a child's emotional condition may be heard. The Lonell J., Jr. court
expressed concern that while older children can communicate with a psychological expert about the
effects of domestic violence on their emotional state, much younger children often cannot (242 2 at 62).
The court believed that "[t]o require expert testimony of this type in the latter situation would be
tantamount to refusing to protect the most vulnerable and impressionable children. While violence
between parents adversely affects all children, younger children in particular are most likely to suffer
from psychosomatic illnesses and arrested development" ( id.).
Granted, in some cases, it may be difficult for an agency to show, absent expert testimony, that there is
imminent risk to a child's emotional state, and that any impairment of emotional health is "clearly
attributable to the unwillingness or inability of the respondent to exercise a minimum degree of care
toward the child" (Family Ct Act § 1012 [h]). Yet nothing in the plain language of Article 10 requires such
testimony. The tragic reality is, as the facts of Lonell J., Jr. show, that emotional injury may be only one of
the harms attributable to the chaos of domestic violence.
Accordingly, the certified questions should be answered in accordance with this Opinion.
Following certification of questions by the United States Court of Appeals for the Second Circuit and
acceptance of the questions by this Court pursuant to section 500.17 of the Rules of Practice of the New
York State Court of Appeals, and after hearing argument by counsel for the parties and consideration of
the briefs and the record submitted, certified questions answered in accordance with the opinion herein.
Opinion by Chief Judge Kaye. Judges Smith, Ciparick, Rosenblatt, Graffeo, Read and Smith concur.
Decided October 26, 2004
--------------------------------------------------------------------------------
Footnotes
1 "ACS" includes all named City defendants, including the City of New York. Apart from defendant John
Johnson (Commissioner of the State Office of Children and Family Services, which oversees ACS), state
officials are named in the complaint with respect to the assigned counsel portion of the case, which is not
before us.
2 The District Court cited the testimony of a child protective manager that it was common practice in
domestic violence cases for ACS to wait a few days before going to court after removing a child because
"after a few days of the children being in foster care, the mother will usually agree to ACS's conditions for
their return without the matter even going to court" (203 F Supp 2d at 170).
3 The injunction was stayed for six months to permit ACS to attempt reform on its own, free of the
court's involvement, and to allow for an appeal. Thereafter, the City and ACS appealed, challenging the
District Court's determination. The Second Circuit denied the City's request for an additional stay
pending appeal.
4 Chief Judge Walker dissented, concluding that the injunction should be vacated because the
evidence did not support the District Court's findings underpinning the injunction. In his view, the District
Court's central factual finding that ACS had a policy of regularly separating battered mothers and
children unnecessarily was "simply unsustainable" ( id. at 177).
5 We are not asked to, nor do we, apply our answers to the trial record, though recognizing that in the
inordinately complex human dilemma presented by domestic violence involving children, the law may be
easier to state than apply.
6 The Legislature has recognized this "quandary" that a victim of domestic violence encounters (Senate
Mem In Supp, 2002 McKinney's Session Laws of NY, at 1821). To avoid punitive responses from child
protective services agencies, the Legislature attempted to increase awareness of child protective
agencies of the dynamics of domestic violence and its impact on child protection by amending the Social
Services Law to mandate comprehensive domestic violence training for child protective services workers.
( id.).
7 In Tenebaum v Williams (193 F3d 581 [2d Cir 1999]), a child's parents brought an action pursuant to
42 USC § 1983 challenging the New York City Child Welfare Administration's removal of their
five-year-old from her kindergarten class--under the emergency removal provision of Family Court Act §
1024--and taking her to the emergency room where a pediatrician and a gynecologist examined her for
signs of possible sexual abuse. When they found none, the child was returned to her parents. The
Second Circuit reversed the District Court's judgment in pertinent part and held that a jury could have
concluded that the emergency removal for the medical examination violated the parents' and child's
procedural due process rights, and the child's Fourth Amendment rights.
8 Under section 1028, a parent or person legally responsible for the care of a child may petition the
court for return of the child after removal, if he or she was not present or given an adequate opportunity
to be present at the section 1027 hearing. The factors to be considered when returning a child removed
in an emergency mirror those considered in an initial determination under sections 1027 and 1022--best
interests, imminent risk, and reasonable efforts to avoid removal.
9 The order must state the court's findings which support the necessity of removal, whether the parent
was present at the hearing, what notice was given to the parent of the hearing and under what
circumstances the removal took place (Family Ct Act § 1027 [b] [i]).
10 The Legislature added these provisions to sections 1022 and 1028 as well.
11 The order must state the court's findings concerning the necessity of removal, whether respondent
was present at the hearing and what notice was given.
12 Section 1022 also requires that the child be brought immediately to a social services department,
that the agency make every reasonable effort to inform the parent where the child is and that the agency
give written notice to the parent of the right to apply to family court for return of the child.
13 Section 1026 permits the return of a child home, without court order, in a case involving neglect,
when an agency determines in its discretion that there is no imminent risk to the child's health in so doing
(Family Ct Act § 1026 [a], [b]). If the agency does not return the child for any reason, the agency must
file a petition forthwith, or within three days if good cause is shown (Family Ct Act § 1026 [c]).
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