Articles Posted in CHILD ABUSE

As previously discussed, New York Child abuse cases that allege that a child was “abuse” as opposed to neglected may be difficult to prove since abuse requires proof of the infliction of a physical injury caused by other than accidental means that causes a substantial risk of death or other or serious or protracted disfigurement, or a protracted impairment of the child’s physical or emotional health or the protracted loss or impairment of the function of any bodily organ. 18 NYCRR § 432.1(a)(1); Fam Ct. Act § 1012(e)(i).

Clearly, to meet the definition of an abused child due to the infliction of a physical injury, the physical injury must be fairly serious. Indeed, it must cause a substantial risk of death or other serious and/or protracted injuries. Therefore, excessive corporal punishment that does not cause a substantial risk of death or the other serious and protracted conditions listed in the definition of “abused child” found in 18 NYCRR § 432.1(a)(1) and Fam Ct. Act § 1012(e)(i) but did otherwise constitute excessive corporal punishment would most likely be deemed a form of neglect as defined in Fam. Ct. Act § 1012(f)(i)(B) or maltreatment as defined in 18 NYCRR § 432.1(b)(1)(ii).

For example, in the Matter of Rodney C., 91 Misc.2d 677, 682, 398 N.Y.S.2d 511, 516 (Fam.Ct., Onondaga Co., 1977), the Court ruled on three separate cases of alleged abuse. In evaluating the first case, the Court held that 26 marks on the back of a seven year old boy still visible three days after his mother beat him were not so excessive as to be life-threatening or likely to cause permanent disfigurement and therefore the child was not an abused child but was instead a neglected child.

Understanding the legal definition of relevant terms associated with New York child abuse or neglect allegations is imperative when you are the subject of a report alleging child abuse, maltreatment and/or neglect. These definitions are set forth in the Social Services Law, the Family Court Act and the Mental Hygiene Law as well as the Regulations of the Department of Social Services.

For purposes of an investigation by a Child Protective Services agency, there are several ways a child can be deemed abused. Here, I will discuss what is probably the most commonly alleged abuse; the infliction of a physical injury. An abused child is a child less than 18 years of age whose parent or other person who is legally responsible for his care inflicts or allows to be inflicted upon that child a physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ. 18 NYCRR § 432.1(a)(1); Fam Ct. Act § 1012(e)(i). Note, that the definition is similar but not identical to the definition of physical injury found in the New York Penal Law and pertains to assault charges.

Therefore, to meet this “physical injury” definition of “abused child”, the child must be less than 18 years of age, the abuse must be inflicted by the parent or other person legally responsible for the child; the child must suffer a physical injury not caused by an accident and that physical injury must cause or create a substantial risk of death, or serious or protracted disfigurement, or a protracted impairment of the child’s physical or emotional health or the protracted loss or impairment of the function of any bodily organ. In other words, based upon this definition, the physical injury must be fairly serious. In future blogs, I will review cases where abuse by physical injury was alleged.

While not technically criminal in nature, New York Child Protective Service investigations often accompany criminal charges for Assault and/or Endangering the Welfare of a Child. In addition, these child abuse and neglect investigations can lead to New York Family Court actions. Did you know that just the slightest mark, scratch, bump or bruise on your child can trigger a most intrusive, terrifying and humiliating investigation of your parenting ability. This article will give you a very general introduction into the intended purpose of Child Protective Services in New York State.

The New York State Legislature has determined that maltreated children within the State are in urgent need of child protective services. The Legislature therefore developed laws to encourage, and even require, the reporting of suspected child abuse and maltreatment. Each county has a child protective service charged with “swiftly” investigating reports of abuse and/or maltreatment. Such investigations are supposed to be swift and competent and capable of preventing further harm to the child. Rehabilitative services are to be provided for the child as well as the parents involved. [See NY Social Services Law sec. 411]

In theory the purpose of child protective services sounds wonderful. In reality, these agencies routinely and needlessly invade the lives of decent families, accuse decent parents of baseless charges of abuse and/or neglect, impose their own beliefs as to what is proper parenting and operate with a total disregard of the constitutional rights of the parents and children. The American Family Rights Association maintains a website replete with horror stories involving CPS throughout the country. The America Family Rights Association website also lists Tilem & Campbell as one of “AFRA’s Lawyer Friends” because of our work in this legal area.