Articles Posted in CHILD ABUSE

A recent New York appellate opinion discussed a case in which a defendant asserted that his rights were compromised because he received ineffective assistance of counsel. The defendant was charged with sexual conduct involving a child in the second and first degrees. The victim, a relative of the defendant’s extended family, informed a school counselor that she had been molested by the defendant between the ages of five and 10 years old on several occasions. The defendant acknowledged that the defense asserted at trial was that this disclosure was a recent fabrication. He also argued, however, that the defense was not assumed until final summations and that the defense was inexplicable in light of statements that the victim provided regarding the abuse to three of her friends roughly four years before the criminal proceeding.

According to the trial court record, however, this defense was asserted very early in the trial proceedings, including at the voir dire or jury selection phase, and it proceeded throughout the trial. The record also showed that defense counsel provided a foundation for this defense in his opening statement, indicating that the victim waited seven years to alert the authorities and that the victim’s decision to wait to disclose the event to authorities four years after she informed her friends indicated that she was not credible.

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At Tilem & Campbell, our lawyers are used to taking on Child Protective Services and the maddening delays and confusion associated with the State Child Abuse Registry. A federal lawsuit filed in 2004 and just settled, challenged the Office of Children and Families for delaying fair hearings usually over a year while people on the registry either lost or could not get jobs. Others were simply denied hearings altogether because New York State arbitrarily decided that the people who requested the hearings sometimes waived them. In a settlement approved by Federal District Judge Shira A. Sheindlin last week, The New York State Office of Children and Families has agreed to complete hearings within 4 months for everyone whose job is affected by the finding and 8 moths for everyone else.

In a sign that the Office of Children and Families is attempting to reduce some of the backlog, this firm has already received at least one call from the State indicating that they will not be going forward on a hearing against one our clients and therefore agreed to an amendment of the finding of Inadequate Guardianship.

In our experience, the State rarely wins these hearings if they are challenged and the tactics of delay and confusion are nothing more than an attempt to deny people their right to a hearing. This settlement should be welcome news for anyone who finds themselves entangled in the Child Abuse system in New York.

Leaving a young child home alone can and often does lead to a parent being charged with Endangering the Welfare of a Child under the New York Penal Law. But at what is age is a child old and mature enough to be left home alone in New York? While some prosecutors choose to charge parents who leave young children (and even teenagers) home alone with Endangering the Welfare of a Child, the reality is, there is no set age in New York for a child to be left alone. The determination is based upon several factors including the age of the child, the maturity of the child and the length of time the child is left alone.
In fact, the City Court of Mt. Vernon has held that leaving a six-year-old child at home alone for one hour during the night, without more, is not criminal and does not support a charge of Endangering the Welfare of a Child. (See People v. Seward, 173 Misc. 2d 1020 (City Ct. Mt. Vernon 1997). The Seward decision cited Augustine v. Berger, 88 Misc. 2d 487 (1976), where the Suffolk County Supreme Court held that leaving a one and a two year old alone for a half hour at night did not amount to maltreatment under the Family Court Act. Similarly, the Kings County Criminal Court has held that leaving a five, seven, twelve and thirteen year old home alone without more supporting facts is insufficient to support a charge of Endangering the Welfare of a Child. People v. Smith, 178 Misc. 2d 350 (1998).
For more information about this, and other criminal law issues, please contact Tilem & Campbell toll-free at 1-877-377-8666 or visit the web at www.tilemandcampbell.com.

The number one concern of parents/guardians who find out they are the subject of a child protective services (CPS) abuse and/or maltreatment (neglect) investigation is whether CPS can remove their children from their home. To summarize, as I wrote in my previous blog, your child can be taken without a court order by CPS when they have reasonable cause to believe that letting the child remain with you would pose an imminent threat to the child’s health or life and there is not enough time to obtain a court order. (See NY Fam. Ct. Act §1024; Soc. Serv. Law § 417).

However, what many people don’t realize is that hospitals and other similar institutions can hold your child under certain circumstances. New York Soc.Serv. Law § 417(2) authorizes hospitals and other institutions to hold your child for twenty-four hours if “the facts so warrant.” The “imminent danger” necessary for CPS to remove your child is not necessary for a hospital to hold your child for twenty-four hours.

The authority for a hospital to hold a child for twenty-four hours is much broader than the authority granted CPS to remove a child from his or her parents/guardian since “imminent danger” need not exist. This “twenty-four-hour hold” period gives hospitals time to contact CPS and hold the child until a CPS investigator can arrive. It prevents a parent/guardian from simply leaving with the child where it is apparent to that parent that hospital medical staff has concerns about abuse and/or maltreatment (neglect). A hospital might hold a child when the child is brought in with suspicious injuries indicative of abuse or excessive corporal punishment.